Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including: (a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary: (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion: (A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement; (B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement; (ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request; (iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii). (b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Indenture (Option Care Health, Inc.)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, event within 30 days after the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party acquisition thereof (or, if after with respect to intellectual property, in any event on a quarterly basis) (or, in each case, such later date as the Sell-Down Date but prior Administrative Agent may agree)) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) 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 request to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted 120 hereunder; and (ii) take all actions reasonably necessary or advisable to cause such Lien to be satisfiedduly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including:including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrower 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 the Collateral Documents on such after-acquired properties to the extent required by the Collateral Documents.
(ab) upon (v) the formation With respect to any Person that is or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate becomes a Restricted Subsidiary as directly owned by a Guarantor pursuant to Loan Party after the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct Closing Date or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) if any Restricted Subsidiary ceasing that was an Excluded Subsidiary ceases to be an Excluded Subsidiary:
, promptly (and in any event within 30 days after the date such Person becomes a Restricted 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) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Restricted Subsidiary owned by such Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder (Cor holders) take of such Equity Interests, and cause all written intercompany notes, if any, representing Indebtedness owing from such Subsidiary (to any Loan Party together with instruments of transfer executed and the parent 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 Restricted Subsidiary that is (A) to execute a Guarantorjoinder 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, and (B) to take whatever action all other actions 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 UCC financing statements and delivery of stock and membership interest certificates to in such jurisdictions within the extent certificated) United States as may be required pursuant to reasonably requested by the terms of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent Agent. Notwithstanding the foregoing, (or in any representative 1) compliance with clause (i) of the Collateral Agent designated by itthis Section 6.11(b) valid and perfected second priority Liens (shall be required only to the extent required by the Collateral Documentsterms of the Security Agreement, (2) no Excluded Subsidiary shall be required to become a Subsidiary Guarantor or otherwise take the extent required by the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 6.11(b) and (3) no more than 65% of the total voting power of all outstanding voting stock and 100% of the Equity Interests not constituting voting stock of any CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the extent requested 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 deliver such be pledged. 121
(c) Each Loan Party shall grant to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) 90 days after such request of the acquisition thereof (or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretionagree), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates a security interest in and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, mortgage in a form reasonably satisfactory to the Controlling PartiesAdministrative 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 $25 million as additional security for the Obligations (unless the subject property is already mortgaged to such matters set forth in this Section 3.13(a) as a third party to the Controlling Partyextent permitted hereunder). In addition, the Designated First Lien Representative or Borrower agrees that, if the Collateral AgentAlabama Property is not sold by December 31, as applicable2014, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, Borrower will cause a Mortgage to be granted on the Real Property comprising the Alabama Property within sixty (60) 90 days after such request thereafter (or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior Administrative Agent may agree). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), 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 Real Property (including, to the extent so required, a Title Policy, a Survey (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 items necessary 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 Agent and the Borrower, the cost of creating or perfecting such pledges or security interests 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 Security Agreement). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and 122 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, 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 Borrower, 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 satisfy this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject Documents and, to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso extent appropriate in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with applicable jurisdiction, as agreed between the Collateral Agent and the Borrower. Notwithstanding the foregoing provisions of this Section 3.13 within 6.11 or anything in this Agreement or any other Loan Document to the time frame required by contrary, any Subsidiary of the definition of “Material Domestic SubsidiaryBorrower that Guarantees the Senior Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.”
Appears in 1 contract
Samples: Credit Agreement
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each caseSubject to this Section 5.11, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party Security Documents but is not so subject (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date)but, in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such any event, excluding any Equity Interest of a Foreign Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 15 Business Days after the acquisition thereof, unless extended by the Administrative Agent in writing in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and Guarantee Requirementfor the benefit of the other Secured Parties, accompanied a Lien on such property subject to no Liens other than Permitted Collateral Liens, (ii) if 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) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding anything to the contrary herein, the Loan Parties shall not have any obligation to perfect Liens on the Intellectual Property Collateral in any jurisdiction other than in the United States. Borrower and the other Loan Parties 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 the Security Documents against such after-acquired properties.
(b) With respect to any person that is or becomes a (A) a guarantor of the payment and/or performance of all or any portion of the obligations under or in respect of any or all the Senior Secured Note Documents (a “Note Guarantor”) or (B) a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within (x) five Business Days after such person becomes a Note Guarantor and (y) 30 days after such person becomes a Subsidiary), in each case, unless extended by the Administrative Agent in writing in its sole discretion), (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement to become a Subsidiary Guarantor and a Pledgor, (B) deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Document to be duly perfected second priority Liens (to the extent required by such Security Document in accordance with all applicable Legal Requirements, including the Collateral Documentsfiling of financing statements (or equivalent registrations) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, within sixty (601) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Equity Interests required to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver be delivered to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(apursuant to clause (i) of the Note Purchase Agreement preceding sentence shall not include any Equity Interests of a Foreign Subsidiary that is a controlled foreign corporation (conformed as appropriatewithin the meaning of Section 957(a) other than changes of the Code) and (2) no Foreign Subsidiary shall be required to such legal opinions resulting from a change take the actions specified in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause clauses (i) or (ii) of the preceding sentence; provided that the exception contained in clause (1) shall not apply to (A) Voting Stock of any Subsidiary 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 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 5.11(b).
(bc) requiring With respect to any person that is or becomes a Subsidiary (other than a Foreign Subsidiary) of a Loan Party after the Closing Date, promptly (and in any event within 10 Business Days after such person becomes a Subsidiary), unless extended by the Administrative Agent in writing in its sole discretion) execute and deliver to the Collateral 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 (and in any event within 10 Business Days of the acquisition thereof, unless extended by the Administrative Agent in writing in its sole discretion) a security interest in and Mortgage on each Domestic Subsidiary 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 $1,000,000, 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. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be designated as a “Material Domestic Subsidiary” granted pursuant to the proviso 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 definition Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, enforceability, perfection and priority of “Material Domestic Subsidiary” 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 have taken all actions to comply with the provisions Administrative Agent and the Collateral Agent) in respect of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiarysuch Mortgage).”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired on or after the Parent Issuer’s expense, date hereof by Borrower or any other Loan Party that is intended to be subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties or assets.
(b) With respect to any person that is or becomes a Wholly Owned Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such person becomes a Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided that with respect to any Foreign Subsidiary of Borrower, 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), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary, and (Cii) take and cause such new Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation and a joinder agreement to the parent of such Subsidiary that is a GuarantorSecurity Agreement, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty .
(60c) days after such request If at any time any two or more Wholly Owned Subsidiaries in the aggregate (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes any Foreign Subsidiary of Borrower that is not a “first-tier” Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10,000,000, then Borrower shall, and shall cause one or more of such legal opinions resulting from a change in LawSubsidiaries to, change in fact or change to counsel’s form of opinion (and prior to comply with Section 5.11(b) within the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters time frames set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative such subsection so that no two or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party more such Subsidiaries hold assets having either a book value or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge fair market value in excess of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)$10,000,000.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expenseWith respect to any new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies or, subject to the limitations and exceptions proviso of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “GuarantorDe Minimis Subsidiary”, at the option of the Borrower, any De Minimis Subsidiary) created or acquired by the Borrower or any of its Subsidiaries (x) which shall be deemed to have occurred in the designation in accordance with Section 3.16 of event that any existing direct Specified Excluded Subsidiary or indirect wholly-owned Material Domestic De Minimis Subsidiaries ceases to qualify as such, it being understood that until such time, such Subsidiaries will not be required to become Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded SubsidiaryGuarantors), promptly: (ya) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties Lenders, or the Borrower, as the case may be, a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary or Foreign Holding Company, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary or Foreign Holding Company and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Article 3 Rule 3-16 of Regulation S-X under the First Lien/Second Lien Intercreditor AgreementSecurities Act for separate financial statements of such Subsidiary to be included in filings by the Borrower with the SEC, and (ii) any Collateral with respect to such new Subsidiary as described in the Guarantee and all certificates Collateral Agreement, - 79-
(b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests (to constituting securities within the extent certificatedmeaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes (to the extent certificated) and or other instruments evidencing Indebtedness thatIntercompany Obligations and all other rights and interests constituting Collateral, in each casetogether with, are required to be pledged pursuant to the Collateral and Guarantee Requirementas applicable, accompanied by undated stock powers or other appropriate powers, instruments of transfer executed and endorsements, in blank; and
, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (Cc) take and cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and the parent of such Subsidiary that is a GuarantorCollateral Agreement and (ii) to take whatever action (such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) in such jurisdictions as may be required pursuant to by the terms of the Notes Documents Guarantee and Collateral Agreement or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required requested by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Administrative Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii). 6.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject (a) Subject to the limitations this Section 5.12 and exceptions of this Indenture, including, without limitation, the provisions of the Collateral Pledge and Guarantee RequirementSecurity Agreement (and subject to the terms hereof and thereof (including any exceptions, limitations and time periods provided therein), with respect to any Property (excluding Real Property and Excluded Property) acquired after the Intercreditor Agreements and any applicable limitation in any Collateral DocumentClosing Date, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Credit Party (or, if after the Sell-Down Date but prior that constitutes Collateral or is otherwise intended to be subject to the Discharge Lien created by any of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Security Instruments (a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded SubsidiaryProperty) by but is not so subject or with respect to any Note Party, Property previously designated as Excluded Property (w) an election by the Parent Issuer to designate a Restricted Subsidiary but is no longer designated as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded SubsidiaryProperty), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
Credit Party shall (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and Collateral the Lenders such amendments or supplements to the relevant Security Instruments or such other documents as the Administrative Agent or the Requisite Term Lenders and/or Requisite Bridge Lenders shall reasonably deem necessary to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any Parties, Acceptable Security Interest on such Property, and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested not already created and/or perfected, take all actions necessary to deliver cause such Property to be subject to an Acceptable Security Interest and not already perfected in accordance with all applicable Legal Requirements, including the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge filing of First Lien Secured Obligations if financing statements in such jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Requisite Term Lenders and/or Requisite Bridge Lenders, in each case, in accordance with the time frames required under the Pledge and Security Agreement.
(b) All Subsidiaries of the Borrower and Credit Parties (other than the Excluded Subsidiaries) shall be or become (as applicable) Guarantors hereunder and grantors under the Pledge and Security Agreement in accordance with Section 6.15 hereof.
(c) Each Credit Party (i) shall grant to the Administrative Agent, within sixty (60) days after of the acquisition thereof, for the benefit of the Secured Parties, an Acceptable Security Interest in and Mortgage on each Real Property valued at least $1,000,000 owned in fee by such request (or Credit Party as is acquired by such longer period as the Controlling Parties (or, if Credit Party after the Sell-Down Date but prior Closing Date, and (ii) at Administrative Agent’s direction (at the direction and reasonable discretion of the Requisite Term Lenders or Requisite Bridge Lenders), shall use commercially reasonable efforts to grant to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Administrative Agent, within sixty (60) days after of the acquisition thereof, an Acceptable Security Interest in and Mortgage on each leased Real Property (where the term of such request lease is at least 7 years (or including any options to extend) and the operations ongoing at such longer period site are integral to the Credit Parties’ business (with the exception of locations used solely as the Controlling Parties (orCredit Parties’ headquarters, if after office locations, or for storage or warehousing) of such Credit Party, in each case, as additional security for the Sell-Down Date but prior Obligations. 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 respective Liens in favor of the Administrative Agent required to be granted pursuant to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), Mortgages. Such Credit Party shall otherwise take such actions and execute and/or deliver to the Collateral Administrative Agent any other items necessary from time such documents as the Administrative Agent or Requisite Term Lenders and/or Requisite Bridge Lenders shall reasonably require to time to satisfy confirm the Collateral and Guarantee Requirement with respect to validity, perfection and existence priority of security interests with respect to property the Liens of any Guarantor existing Mortgages or such new Mortgages against such after-acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)Real Property.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Delayed Draw Term Loan and Bridge Loan Credit Agreement (Par Petroleum Corp/Co)
Additional Collateral; Additional Guarantors. At (i) Subject to the Parent Issuer’s expenseterms of the Intercreditor Agreement and this Section 5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Security Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party event within thirty (or, if 30) days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure acquisition thereof provided that the Collateral and Guarantee Requirement continues Administrative Agent may agree to be satisfied, including:
(aan extension thereof in its sole discretion) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Permitted Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Requirements of Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and financing statements (or other security agreements and documents 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 Borrower shall otherwise take such 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 Security Documents against such after-acquired properties.
(j) With respect to any person that becomes a Restricted Subsidiary after the Closing Date (other than (x) an Excluded Collateral Subsidiary and (y) a Securitization Entity) or any Controlling 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 by operation of the provisions of Section 5.11(d), promptly (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory any event within thirty (30) days after such person becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the Controlling Parties (or, if after provisions of Section 5.11(d) provided that the Sell-Down Date but prior Administrative Agent may agree to the Discharge an extension of First Lien Secured Obligations, the Designated First Lien Representativesuch time period in its sole discretion) (consistent with the Security Agreement, Intellectual Property Security Agreements i) pledge and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Restricted Subsidiary owned by a Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
(Cblank by a duly authorized officer of the holder(s) take and cause such Subsidiary (and the parent 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 and (ii) cause any such Restricted Subsidiary that is a GuarantorWholly 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 or such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of UCC financing statements and delivery (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of stock and membership interest certificates this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent certificatedany 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 Lien on such Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), (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 (other than any of the foregoing entered into with any Company or Affiliate of 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 may be required pursuant determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law prohibits it from becoming a Loan Party.
(k) Subject to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (orIntercreditor Agreement, if after the Sell-Down Date but prior promptly grant to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed acquisition thereof, a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as appropriate) other than changes to is acquired by such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Loan Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired 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 $10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by 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). 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, perfected and enforceable First Priority Liens subject only to Permitted Liens. 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 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 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 Policy (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.
(l) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated 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 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 more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Borrower may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Borrower on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral and Guarantee Requirement, but not specifically covered Agent shall release the Collateral pledged by such Person.
(m) Any Foreign Subsidiary that is a Loan Party that has in the preceding clause 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.
(bn) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions Notwithstanding any other provision of this Section 3.13 within 5.11 to the time frame required by contrary, in no event shall this Section 5.11 obligate any Loan Party to xxxxx x Xxxx to the definition of “Material Domestic SubsidiaryCollateral Agent on any Excluded Property.”
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any Property now owned or acquired after the Parent Issuer’s expense, Restatement Date by the Loan Parties that is intended to be or become Collateral subject to the limitations Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Property described in Section 5.11(b)) promptly (and exceptions in any event within 30 days after the acquisition thereof provided the 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable in its Business Judgment to grant to the Collateral Agent, for its benefit and for the benefit of this Indenturethe other Secured Parties, a Lien on such Property subject to no Liens other than Permitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably such jurisdictions as may be requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent or the Collateral Agent to ensure that the Collateral in its Business Judgment. Each Loan Party shall otherwise take such actions and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall request in its Business Judgment to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties or assets.
(b) With respect to any Person that is or becomes a Wholly-Owned Subsidiary (other than any Immaterial Subsidiary or any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such Person becomes a Subsidiary or is no longer an Immaterial Subsidiary or such later date as the Administrative Agent may agree) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided, that with respect to any first-tier Foreign Subsidiary of any Company 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 pledge would have a material adverse tax impact on any Company (determined in the Reasonable Credit Judgment of the Administrative Agent)), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of such Subsidiary’s parent, as the case may be, and (Cii) cause such new Subsidiary (other than any Foreign Subsidiary if such pledge would have a material adverse tax impact on any Company (determined in the Reasonable Credit Judgment of the Administrative Agent) to (A) execute a Joinder Agreement or such comparable documentation and a joinder agreement to the Security Agreement in the form annexed thereto which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) take and cause such Subsidiary (and all commercially reasonable actions necessary or advisable in the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms Reasonable Credit Judgment of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty . If any such new Subsidiary is engaged in the business of coal production or coal sales (60) days after such request (other than the sale of coal for export or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretionhome use), deliver to such Joinder Agreement shall provide, among other things, for the Collateral Agent customary legal opinionsjoinder of such new Subsidiary as an additional Borrower, board resolutionsand, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change , as an additional Mining Company or Land Company and shall otherwise be in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling PartiesAdministrative Agent.
(c) as If at any time any one or more Wholly-Owned Subsidiaries in the aggregate (other than any Foreign Subsidiary of any Company that is not a “first-tier” Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10.0 million, then the Borrowers shall, and shall cause one or more of such matters Subsidiaries to, comply with Section 5.11(b) within the time frames set forth in this Section 3.13(a) as such subsection so that no one or more such Subsidiaries in the Controlling Party, the Designated First Lien Representative aggregate hold assets having either a book value or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge fair market value in excess of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)$10.0 million.
(bd) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions Notwithstanding any provision of this Section 3.13 within 5.11 to the time frame required by the definition of “Material Domestic contrary, Section 5.11(a), (b) and (c) shall not apply to any Insurance Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Massey Energy Co)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each caseSubject to this Section 5.10, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party Security Documents but is not so subject (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date)but, in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such any event, excluding any Equity Interest of a Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are not required to be pledged pursuant to the last sentence of Section 5.10(b) and any Excluded Asset), promptly (and in any event within sixty (60) days after the acquisition thereof or such longer period as may be agreed to in writing by the Administrative Agent) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably necessary or advisable to grant to the Collateral Agent, for its benefit and Guarantee Requirementfor the benefit of the other Secured Parties, accompanied a Lien on such Property under applicable U.S. state and federal law (and applicable foreign law unless the Collateral Agent shall determine in its sole discretion that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) subject to no Liens other than Permitted Liens, (ii) to the extent (A) the value of such after-acquired Property would constitute a material portion of the Collateral as a whole, and (B) requested by the Administrative Agent or the Collateral Agent, deliver customary and reasonable opinions of counsel to the Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent, and (iii) take all actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and the delivery of Control Agreements (as defined in the Security Agreement) for the benefit of the Administrative Agent to the extent required pursuant to the Security Agreement. Subject to the limitations set forth herein and in the other Loan Documents, the Borrower and the other Loan Parties 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 the Security Documents against such after-acquired Properties.
(b) With respect to any person that is or becomes a Subsidiary of a Loan Party after the Closing Date (other than (x) Excluded Subsidiaries or (y) 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 sixty (60) days of its formation thereof or such later date as permitted by the Administrative Agent in its sole discretion), the applicable Loan Party shall promptly (and in any event within sixty (60) days after such person becomes a Subsidiary or such longer period as may be agreed to in writing by the Administrative Agent)
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder(s) of such Equity Interests (provided that if the Equity Interests of such Subsidiary is not represented by certificates, the Borrower shall not be required to cause such Equity Interests to be certificated), and all intercompany notes, if any (subject to the limitations set forth in the Security Agreement), 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 and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement to cause such Subsidiary to become a Guarantor and a Pledgor, (B) deliver opinions of counsel to the Borrower in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including all actions reasonably necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Document to be duly perfected second priority Liens (to the extent required by such Security Document in accordance with all applicable Legal Requirements, including the Collateral Documentsfiling of financing statements (or equivalent registrations) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) any Equity Interests of a Subsidiary that is either a CFC or a U.S. Foreign Holdco that is required to be delivered to the Collateral Agent pursuant to clause (i) of the preceding sentence may be limited to (A) Voting Stock 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 sixty the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes of this Section 5.10(b)) if delivery in excess of such limits would result in material adverse tax consequences to the Borrower and its Subsidiaries as reasonably determined by Borrower and the Administrative Agent and (602) a Subsidiary shall not be required to take the actions specified in clause (ii) of the preceding sentence to the extent such Subsidiary (v) is prohibited from taking such actions by applicable law, rule or regulation or by any contractual obligation existing at the time of acquisition thereof after the Closing Date (to the extent such contractual obligation was not created in contemplation of such acquisition) for so long as such prohibition exists, (w) would require governmental (including regulatory) consent, approval, license or authorization to the extent such consent, approval, license or authorization has not been received upon the Loan Parties using commercially reasonable efforts to acquire the same or (x) is a CFC, a direct or indirect Domestic Subsidiary of a CFC or a U.S. Foreign Holdco if taking such actions would result in material adverse tax consequences to the Borrower and its Subsidiaries as reasonably determined by Borrower and the Administrative Agent. Notwithstanding the foregoing, no actions shall be required to be taken in any U.S. or non-U.S. jurisdiction to create or perfect any security interest with respect to any such Subsidiary, including the delivery of any security agreements or pledge agreements governed under the laws of any U.S. or non-U.S. jurisdiction.
(c) [reserved].
(d) Promptly (and in any event within 90 days after such request (of the acquisition thereof or such longer period as may be agreed to in writing by the Controlling Parties (or, if Administrative Agent) grant to the Collateral Agent a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Sell-Down Closing Date but prior and that, together with any improvements thereon, individually has a Fair Market Value of at least $2,000,000, as additional security for the Secured Obligations (unless the subject Property is already mortgaged to a third party to the Discharge 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 Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full by each applicable Loan Party. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutionsenforceability, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in LawTitle Policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling PartiesAdministrative Agent and the Collateral Agent) as in respect of such Mortgage) and shall take such actions relating to insurance with respect to such matters set forth after-acquired Real Property and execute and/or delivery to the Collateral Agent such environmental reports, zoning reports, insurance certificates, flood determinations and evidence of flood insurance (in this Section 3.13(aform and substance reasonably acceptable to the Administrative Agent and the Collateral Agent) as and other documentation (including with respect to title and flood insurance), in each case in form and substance reasonably satisfactory to the Controlling Party, the Designated First Lien Representative or the Administrative Agent and Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent shall reasonably request. Notwithstanding the foregoing, (i) any other items necessary from time fee owned real property with a Fair Market Value of less than $2,000,000 (with the amount secured by such mortgage limited to time the Fair Market Value of the applicable fee owned real property (to satisfy the Collateral extent that such real property is located in a jurisdiction that imposes a mortgage recording tax based on the amount of debt secured by the respective mortgage) and Guarantee Requirement with respect any required mortgages on properties with a value greater than such amount being permitted to perfection and existence of security interests with respect to property of any Guarantor acquired be delivered within 90 days after the Closing Date (as such date may be extended by the Administrative Agent in its sole discretion) and subject all leasehold interests in real property (other than leaseholds of manufacturing or distribution centers that secure (or were otherwise required to secure) the obligations under any of the debt to be repaid as part of the Refinancing, although the Borrower shall only be required to use its commercially reasonable efforts to obtain any third party consents that may be required to grant such leasehold mortgage) and (ii) no action will be required with respect to any fee-owned Real Property located outside the United States. With respect to any Real Property that is ground leased, the Loan Party shall use commercially reasonable efforts to obtain estoppels and consents from the applicable ground lessors in form and substance reasonably satisfactory to the Administrative Agent and the Collateral and Guarantee RequirementAgent. Upon receipt of any required consents, but not specifically covered by the preceding clause (i) or (iiLoan Party will deliver all other deliverables required pursuant to this Section 5.10(d).
(be) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to Notwithstanding the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the foregoing provisions of this Section 3.13 within 5.10 or any other provision in this Agreement or of any other Loan Document, (i) none of the time frame Loan Parties shall be required to grant a security interest in any Excluded Assets, (ii) none of the Loan Parties shall be required to perfect any pledges, security interests and mortgages in the Collateral by any means other than (A) filings pursuant to the definition Uniform Commercial Code in the office of “Material Domestic Subsidiarythe Secretary of State of the relevant State and (2) filings in the United States Patent and Trademark Office and United States Copyright Office with respect to intellectual property as expressly required in the Security Documents, (B) Mortgages in respect of Mortgaged Properties to be filed in the applicable recording office(s) of the counties in which the Mortgaged Property is located (and, if required or customary in the jurisdiction where such Mortgaged Properties are located, fixture filings) and (C) subject to any intercreditor arrangements entered into pursuant to this Agreement, delivery to the Lender of all certificates evidencing equity interests required to be delivered in order to perfect the Lender’s security interest therein, and intercompany notes and other instruments to be held in its possession, in each case as expressly required in the Security Documents.”
Appears in 1 contract
Samples: Credit Agreement (Inotiv, Inc.)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expenseWith respect to any new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies or, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions proviso of the Collateral and Guarantee Requirementdefinition of “De Minimis Subsidiary”, at the Intercreditor Agreements and option of the Borrower, any applicable limitation in De Minimis Subsidiary) created or acquired by the Borrower or any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to(which shall be deemed to have occurred in the event that any Specified Excluded Subsidiary or De Minimis Subsidiaries ceases to qualify as such, take all action necessary or reasonably requested by any Controlling Party (orit being understood that until such time, if after the Sell-Down Date but prior such Subsidiaries will not be required to the Discharge of First Lien Secured Obligationsbecome Subsidiary Guarantors), the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:promptly: - 78-
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties Lenders, or the Borrower, as the case may be, a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary or Foreign Holding Company, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary or Foreign Holding Company and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Article 3 Rule 3-16 of Regulation S-X under the First Lien/Second Lien Intercreditor AgreementSecurities Act for separate financial statements of such Subsidiary to be included in filings by the Borrower with the SEC, and (ii) any Collateral with respect to such new Subsidiary as described in the Guarantee and all certificates Collateral Agreement, (b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests (to constituting securities within the extent certificatedmeaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes (to the extent certificated) and or other instruments evidencing Indebtedness thatIntercompany Obligations and all other rights and interests constituting Collateral, in each casetogether with, are required to be pledged pursuant to the Collateral and Guarantee Requirementas applicable, accompanied by undated stock powers or other appropriate powers, instruments of transfer executed and endorsements, in blank; and
, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (Cc) take and cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and the parent of such Subsidiary that is a GuarantorCollateral Agreement and (ii) to take whatever action (such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) in such jurisdictions as may be required pursuant to by the terms of the Notes Documents Guarantee and Collateral Agreement or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required requested by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Administrative Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii). 6.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expenseWith respect to any new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies or, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions proviso of the Collateral and Guarantee Requirementdefinition of “De Minimis Subsidiary”, at the Intercreditor Agreements and option of the Borrower, any applicable limitation in De Minimis Subsidiary) created or acquired by the Borrower or any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to(which shall be deemed to have occurred in the event that any Specified Excluded Subsidiary or De Minimis Subsidiaries ceases to qualify as such, take all action necessary or reasonably requested by any Controlling Party (orit being understood that until such time, if after the Sell-Down Date but prior such Subsidiaries will not be required to the Discharge of First Lien Secured Obligationsbecome Subsidiary Guarantors), the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingpromptly:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties Lenders, or the Borrower, as the case may be, a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary or Foreign Holding Company, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary or Foreign Holding Company and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Article 3 Rule 3-16 of Regulation S-X under the First Lien/Second Lien Intercreditor AgreementSecurities Act for separate financial statements of such Subsidiary to be included in filings by the Borrower with the SEC, and (ii) any Collateral with respect to such new Subsidiary as described in the Guarantee and all certificates Collateral Agreement,
(b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests (to constituting securities within the extent certificatedmeaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes (to the extent certificated) and or other instruments evidencing Indebtedness thatIntercompany Obligations and all other rights and interests constituting Collateral, in each casetogether with, are required to be pledged pursuant to the Collateral and Guarantee Requirementas applicable, accompanied by undated stock powers or other appropriate powers, instruments of transfer executed and endorsements, in blank; , executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and
(Cc) take and cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and the parent of such Subsidiary that is a GuarantorCollateral Agreement and (ii) to take whatever action (such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) in such jurisdictions as may be required pursuant to by the terms of the Notes Documents Guarantee and Collateral Agreement or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required requested by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Administrative Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Additional Collateral; Additional Guarantors. At the Parent IssuerBorrower’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation herein or in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries toDocument (including any Acceptable Intercreditor Agreement), take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingfollowing actions:
(a) upon (v1) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic U.S. Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Loan Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x2) the designation in accordance with Section 3.16 6.13 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted U.S. Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) as a Restricted Subsidiary of a Loan Party or (z3) any Restricted Subsidiary ceasing to be becoming a U.S. Subsidiary (other than an Excluded Subsidiary:
) of a Loan Party, within sixty (i) within 60 (or such greater number of days specified below60) days after such formation, acquisition or acquisition, designation, occurrence or, in each case, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their (or its) its reasonable discretion:
(Ai) cause each such Subsidiary to duly execute and deliver to the Trustee and Administrative Agent or the Collateral Agent, other than with respect to any Excluded AssetsAgent (as appropriate) a Joinder Agreement, a Guarantor Supplemental Indenture, completed Security Agreement SupplementsSupplement, any applicable Intellectual Property Security AgreementsAgreement(s), a counterpart of the Intercompany Note Note, a counterpart acknowledgment to any Acceptable Intercreditor Agreement(s), if applicable, and other security agreements and documents documents, as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Collateral Agent (consistent with the Security Agreement, Intellectual Property Security Agreements Agreement and other security agreements Collateral Documents in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Bii) cause each such Subsidiary (and the parent of each such Subsidiary that is a GuarantorLoan Party) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, that are required to be pledged pursuant to the Collateral and Guarantee RequirementSecurity Agreement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and, and instruments evidencing Indebtedness held by such Subsidiary and required to be pledged pursuant to the Security Agreement, accompanied by undated note transfer powers or indorsed in blank to the Collateral Agent;
(Ciii) upon reasonable request of the Collateral Agent, take and cause such Subsidiary (and the each direct or indirect parent of such Subsidiary that is (or is required to be) a Guarantor) Loan Party pursuant hereto to take take, whatever action (including the recording of the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates certificates, to the extent certificated) as may certificated and required to be required delivered pursuant to the terms of the Notes Documents or Security Agreement) as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required hereby or by the Collateral Documents) to the extent required by the Collateral and Guarantee RequirementSecurity Agreement;
(iiiv) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent, within sixty (60) days (or within ninety (90) days in the case of documents listed in Section 6.12(ii) after the request therefor by the Administrative Agent (or, in each case, such longer period as the Administrative Agent may agree in writing in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent, the Collateral Agent and the Lenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 6.11(a) as the Administrative Agent may reasonably request; and
(v) if reasonably requested by the Administrative Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable its discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the requirements of this Section 6.11 and any Collateral and Guarantee Requirement Document with respect to perfection and existence of security interests with respect to property Collateral of any Guarantor acquired after the Closing Date and subject to the this Section 6.11 and any Collateral and Guarantee RequirementDocument, but not otherwise specifically covered by the preceding clause (ithis Section 6.11. provided that actions relating to Liens on real property are governed by Section 6.11(b) or (iiand not this Section 6.11(a).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.12 and Section 6.14(b) and the Parent Issuer’s expenseAgreed Security Principles, with respect to any property (or material property, in respect of IP Rights) acquired after the Original Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 120 days after the Sell-Down Date but prior to acquisition thereof or such later time as the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfiedAgent, including:
(aas applicable, acting reasonably, agrees to) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee 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 or to the relevant Secured Parties directly, as applicable, a Lien on such property subject to no Liens other than Liens permitted pursuant to Section 7.01, 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 respect to any Excluded Assetsall applicable Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Agent. The Borrowers shall otherwise take such commercially reasonable actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent such documents as 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.
(or, prior b) Subject to the Discharge Agreed Security Principles with respect to any Person that is or becomes a direct Subsidiary other than a Securitization Entity of First Lien Secured Obligationsa Loan Party after the Original Closing Date, promptly (and in any event within 120 days after such Person becomes a Subsidiary or such later time as the Designated First Lien Representative Administrative Agent or the Collateral Agent, as gratuitous bailee for applicable, may agree in its sole discretion) (i) deliver to the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and Collateral Agent all certificates representing the Equity Interests (to the extent certificated)) of such Subsidiary owned by such Loan Party and required to be pledged pursuant to the Collateral and Guarantee 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 (i) held by any Securitization Entity or Basell Sales & Marketing B.V. or (ii) which on an individual basis do not exceed €10,000,000 owing from such Subsidiary to the extent certificated) any Loan Party and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate together with instruments of transfer executed and delivered in blank; and
(C) take and cause such Subsidiary (and the parent blank by a duly authorized officer of such Subsidiary that is a Guarantor) Loan Party (in each case, with respect to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates Foreign Subsidiaries, to the extent certificatedapplicable and permitted under foreign laws, rules or regulations) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior necessary to the Discharge perfect a Lien under applicable Law, by means of First an applicable Collateral Document, create a Lien Secured Obligations, the Designated First Lien Representative) to vest on such Equity Interests and intercompany notes in the Collateral Agent (or in any representative favor of the Collateral Agent designated by iton behalf of the Secured Parties and (ii) valid cause any such new Subsidiary that is required to be a Guarantor under the Collateral and perfected second priority Liens Guarantee Requirement (A) to execute a joinder agreement reasonably acceptable to the extent required by Collateral Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents) Documents (including the applicable Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement over substantially all of its assets to the extent required by the Collateral and Guarantee Requirement;
Requirement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (iiB) to take all actions necessary or advisable in the reasonable opinion of the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent requested to deliver required by such to agreement in accordance with all applicable Law, including the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge filing of First Lien Secured Obligations if financing statements in such jurisdictions as may be reasonably requested by any Controlling Party or the Collateral Agent.
(c) Subject to the Agreed Security Principles, in the case of a Loan Party, promptly grant to the Collateral Agent, within sixty (60) 120 days after such request (of the acquisition thereof or such longer period as the Controlling Parties Collateral Agent may determine, in its sole discretion, a Mortgage (oror in the case of Real Property outside the U.S., if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to other appropriate security as the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;) on each parcel of Real Property owned in fee or otherwise with legal title or ground leased 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 $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).
(iiii) if reasonably requested by any Controlling Subject to the Agreed Security Principles, in the case of a Loan Party or promptly grant to the Collateral Agent, within sixty (60) 120 days after such request (of the acquisition thereof or such longer period as the Controlling Parties Collateral Agent may determine in its sole discretion, a Mortgage (oror in the case of Real Property outside the U.S., if other appropriate security as the Collateral Agent may reasonably request) in form reasonably satisfactory to the Administrative Agent and Collateral Agent on each pipeline easement and 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 after the Sell-Down Original Closing Date but prior as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the Discharge extent permitted hereunder).
(ii) Such Mortgages shall be subject to the Agreed Security Principles 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 First Lien the Collateral Agent and/or the Secured ObligationsParties 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 Designated First Lien Representative) may agree in writing in their Agreed Security Principles, such Loan Party shall otherwise take such commercially reasonable discretion), actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral and Guarantee Requirement with respect Agent shall reasonably require to confirm the validity, perfection and existence priority of security interests with respect to property the Lien of any Guarantor existing Mortgage or new Mortgage against such after-acquired after Real Property (including a Title Policy (only in the Closing Date and subject to case of Real Property located in the Collateral and Guarantee RequirementUnited States, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated excluding Excluded Easements as a “Material Domestic Subsidiary” pursuant to the proviso such term is defined in the definition of “Material Domestic SubsidiaryCollateral and Guarantee Requirement”)), 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 have taken all 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 6.12 by a Person if and to comply 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 Original 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’ Agent, that perfection cannot be accomplished using commercially reasonable efforts 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 3.13 within 6.12 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time frame required by to time pursuant to this Section 6.12 shall be subject to the definition Agreed Security Principles and exceptions and limitations set forth in the Collateral Documents as in effect on the Original Closing Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and the Company. Notwithstanding the foregoing provisions of “Material Domestic Subsidiarythis Section 6.12 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Second Lien Debt, any Permanent Financing or any Junior Financing shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expenseWith respect to any new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies or, subject to the limitations and exceptions proviso of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “GuarantorDe Minimis Subsidiary”, at the option of the Borrower, any De Minimis Subsidiary) created or acquired by the Borrower or any of its Subsidiaries (x) which shall be deemed to have occurred in the designation in accordance with Section 3.16 of event that any existing direct Specified Excluded Subsidiary or indirect wholly-owned Material Domestic De Minimis Subsidiaries ceases to qualify as such, it being understood that until such time, such Subsidiaries will not be required to become Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded SubsidiaryGuarantors until such time), promptly : (ya) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties Lenders, or the Borrower, as the case may be, a perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary or Foreign Holding Company, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary or Foreign Holding Company and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Article 3 Rule 3-16 of Regulation S-X under the First Lien/Second Lien Intercreditor AgreementSecurities Act for separate financial statements of such Subsidiary to be included in filings by the Borrower with the SEC, and (ii) any Collateral with respect to such new Subsidiary as described in the Guarantee and all certificates Collateral Agreement, (b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests (to constituting securities within the extent certificatedmeaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes (to the extent certificated) and or other instruments evidencing Indebtedness thatIntercompany Obligations and all other rights and interests constituting Collateral, in each casetogether with, are required to be pledged pursuant to the Collateral and Guarantee Requirementas applicable, accompanied by undated stock powers or other appropriate powers, instruments of transfer executed and endorsements, in blank; and
, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (Cc) take and cause such new Subsidiary (and the parent of such Subsidiary that is a Guarantori) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates deliver an Assumption Agreement with respect to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Guarantee and Collateral Agent (or in any representative of the Collateral Agent designated by it) valid Agreement and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested take such actions necessary or advisable to deliver such grant to the Designated First Lien Representative under Administrative Agent for the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) benefit of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from Lenders a change in Lawperfected first priority security interest, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”- 97-
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any Property now owned or acquired after the Parent Issuer’s expense, Restatement Date by the Borrowers or any other Loan Party that is intended to be or become Collateral subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 30 days after the acquisition 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Administrative Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral Agent. Each Borrower shall otherwise take such actions and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties or assets.
(b) With respect to any Person that is or becomes a Wholly-Owned Subsidiary (other than any Immaterial Subsidiary or any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such Person becomes a Subsidiary or is no longer an Immaterial Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided, that with respect to any first-tier Foreign Subsidiary of Holdings or any of its Subsidiaries 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 pledge would have a material adverse tax impact on Holdings or any of its Subsidiaries (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; and
blank by a duly authorized officer of such Subsidiary’s parent, as the case may be, and (Cii) take and cause such new Subsidiary (other than any Foreign Subsidiary if such pledge would have a material adverse tax impact on Holdings or any of its Subsidiaries (determined at the reasonable discretion of the Administrative Agent) (A) to execute a Joinder Agreement or such comparable documentation and a joinder agreement to the parent of such Subsidiary that Security Agreement in the form annexed thereto which is a Guarantorin form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty . If any such new Subsidiary is engaged in the business of coal production or coal sales (60) days after such request (other than the sale of coal for export or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretionhome use), deliver to such Joinder Agreement shall provide, among other things, for the Collateral Agent customary legal opinionsjoinder of such new Subsidiary as an additional Borrower and, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change , as an additional Mining Company, Land Company or Sales Company and shall otherwise be in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably substance satisfactory to the Controlling PartiesAdministrative Agent.
(c) as If at any time any one or more Wholly-Owned Subsidiaries in the aggregate (other than any Foreign Subsidiary of Holdings or any of its Subsidiaries that is not a “first-tier” Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10.0 million, then the Borrowers shall, and shall cause one or more of such matters Subsidiaries to, comply with Section 5.11(b) within the time frames set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative such subsection so that no one or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after more such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso Subsidiaries in the definition aggregate hold assets having either a book value or fair market value in excess of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary$10.0 million.”
Appears in 1 contract
Samples: Credit Agreement (Massey Energy Co)
Additional Collateral; Additional Guarantors. At In the Parent Issuer’s expenseevent that the Borrower is permitted to acquire or form any additional Subsidiary, subject such Subsidiary shall execute a guarantee, or a supplement to the limitations Subsidiaries Guarantee (except if such Subsidiary is a Foreign Subsidiary and exceptions a Responsible Officer shall have certified to the Administrative Agent and the Lenders that the execution of this Indenturesuch a guarantee or supplement by such Foreign Subsidiary would materially and adversely affect the tax position of such Subsidiary and of the Borrower), and the Borrower and/or any Subsidiary which is a holder of any Capital Stock of such Subsidiary shall execute such pledge agreements or supplements to the Pledge Agreements, each in form and substance satisfactory to the Administrative Agent, and shall take such other action as shall be necessary or advisable (including, without limitation, the execution of financing statements on form UCC-1) in order to effect and perfect the pledge in favor of the Administrative Agent for the benefit of the Lenders of not less than (a) 65% of the outstanding voting Capital Stock of such Subsidiary and 100% of the outstanding nonvoting Capital Stock of such Subsidiary, if such Subsidiary is a Foreign Subsidiary and a Responsible Officer shall have certified to the Administrative Agent and the Lenders that the pledge of greater than 66-2/3% of the Capital Stock of such Foreign Subsidiary would materially and adversely affect the tax position of such Subsidiary and of the Borrower, or (b) all of the Capital Stock of such Subsidiary, otherwise. Such Subsidiary shall thereupon become a Guarantor for all purposes under the Loan Documents. The Administrative Agent shall be entitled to receive legal opinions of one or more counsel to the Borrower and such Subsidiary addressing such matters as the Administrative Agent or its counsel may reasonably request, including, without limitation, the provisions enforceability of the Collateral guaranty and Guarantee Requirement, the Intercreditor Agreements security agreement to which such Subsidiary becomes a party and any applicable limitation in any Collateral Document, the Parent Issuer shallpledge of the Capital Stock of such Subsidiary, and shall cause each the creation, validity and perfection of its Restricted the Liens so granted by such Subsidiary and the Borrower and/or other Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)Lenders.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
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Additional Collateral; Additional Guarantors. At With respect to any Specified Personal Property acquired after the Parent Issuer’s expenseClosing Date as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly following such acquisition (i) execute and deliver to the Administrative Agent such amendments or supplements to the Security Agreement or Mortgages or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a Lien in such Property, (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien in such Property, subject to Permitted Liens, including without limitation, the limitations filing of UCC financing statements (or equivalent documentation) in such jurisdictions as may be required by the Security Agreement or by Law or as may be requested by the Administrative Agent and exceptions the recording of such amendment or supplement with the United States Coast Guard, if applicable, and (iii) if reasonably 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, and from counsel, reasonably satisfactory to the Administrative Agent.
(a) With respect to any new Material Subsidiary (other than an Excluded Subsidiary or a Project Finance Subsidiary) created or acquired after the Closing Date (which, for the purposes of this Indentureparagraph, shall include (1) any existing Material Subsidiary that ceases to be an Excluded Subsidiary and a Project Finance Subsidiary and (2) any existing Subsidiary (that is not an Excluded Subsidiary or a Project Finance Subsidiary) that ceases to be an Immaterial Subsidiary), by the Parent Borrower or any other Loan Parties, promptly following such creation or acquisition, (i) cause such Subsidiary (A) to become a party to the Guaranty and the Security Agreement (or enter into other similar documents in form and substance satisfactory to the Administrative Agent), (B) in the case of any such Subsidiary owning a Specified Barge Rig, to execute and deliver a new Mortgage or an amendment to any existing Mortgage to include as covering such Specified Barge Rig, and (C) in the case of any Domestic Subsidiary (or any Foreign Subsidiary that becomes a Designated Borrower), to take such actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien in the Collateral described in the Security Agreement (or other similar document referred to in (i)(A) above) or the applicable Mortgage (or amendment to an existing Mortgage), as the case may be, with respect to such Subsidiary (subject to Permitted Liens), including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent documentation) in such jurisdictions as may be required pursuant to by the terms of the Notes Documents Security Agreement or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent and the recording of such Mortgage or amendment to a Mortgage with the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (orUnited States Coast Guard, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
and (iiiii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), Administrative Agent deliver to the Collateral Administrative Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject legal opinions relating to the Collateral matters described above, which opinions shall be in form and Guarantee Requirementsubstance, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant and from counsel, reasonably satisfactory to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic SubsidiaryAdministrative Agent.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Parent Issuer’s expenseAdministrative Agent may agree in its sole discretion) after (i) the consummation by the Borrower or any Restricted Subsidiary that is (or in connection therewith becomes) a Credit Party of a Permitted Acquisition or a Material Acquisition (including the Fourth Amendment DevCo Contribution), subject to the limitations and exceptions of this Indenture, including, without limitation(ii) each semi-annual period ending on June 30 or December 31, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer Borrower shall, and shall cause each Restricted Subsidiary that is (or in connection therewith becomes) a Credit Party and any applicable DevCo to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties (other than any Immaterial Midstream Property) that have been received or otherwise acquired by the Borrower or any Restricted Subsidiaries toSubsidiary that is (or in connection therewith becomes) a Credit Party or DevCo (including any such Midstream Properties owned by any Person that is a DevCo or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Permitted Acquisition or Material Acquisition or during such period, take all action necessary as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way (other than Immaterial Midstream Properties) in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent. In connection with the foregoing, to the extent reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured ObligationsAdministrative Agent, the Designated First Lien Representative) Borrower shall deliver, or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues shall cause to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”delivered, (x) title and extended coverage insurance covering real property subject to the designation additional Security Instruments in accordance with Section 3.16 an amount equal to the purchase price of any existing direct such interest in real property (or indirect wholly-owned Material Domestic Subsidiary such other amount as shall be reasonably specified by the Administrative Agent) as well as a Restricted Subsidiary (in each casecurrent ALTA survey thereof, other than an Excluded Subsidiary)together with a surveyor’s certificate, (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Security Instruments, each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and foregoing in form and substance reasonably satisfactory to the Controlling Parties Administrative Agent and (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representativez) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates which opinions shall be in form and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as Administrative Agent. In order to such matters set forth in this Section 3.13(a) as comply with the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (orforegoing, if after any Restricted Subsidiary places a Lien on its property and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with the Sell-Down Date but prior to the Discharge provisions of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiSections 8.14(b).
(b) requiring The Parent and the Borrower shall promptly cause each Domestic Material Subsidiary, and any other Restricted Subsidiary required that guarantees any Debt of any other Credit Party, to be designated as a “Material Domestic Subsidiary” guarantee the Indebtedness pursuant to the proviso Guaranty and Security Agreement; provided that the foregoing shall not apply to any DevCo until such time that the DevCo is a Wholly-Owned Subsidiary. In connection with any such guaranty, the Parent and the Borrower shall (i) cause such Restricted Subsidiary to execute and deliver the Guaranty and Security Agreement or a supplement thereto, as applicable, (ii) cause the Credit Party that owns Equity Interests in such Restricted Subsidiary to pledge all of the definition Equity Interests of “Material Domestic such new Restricted Subsidiary pursuant to the Guaranty and Security Agreement (including, without limitation, delivery (if applicable) of original certificates evidencing the Equity Interests of such Restricted Subsidiary” to have taken all actions to comply , together with the provisions of this Section 3.13 within the time frame required an appropriate undated stock powers for each certificate duly executed in blank by the definition 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.
(c) The Parent and the Borrower will in connection with any deposit account, securities account or commodity 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, securities account or commodity account (other than an Excluded Account for so long as it is an Excluded Account) to be subject to a Control Agreement prior to depositing any funds or other Property therein or prior to such deposit account, securities account or commodity account ceasing to become an Excluded Account (or in each case, such later date as agreed by the Administrative Agent in its sole discretion, but not to exceed five (5) Business Days).
(d) The Parent and the Borrower shall promptly cause each DevCo to guarantee the Indebtedness pursuant to the DevCo Guaranty. In connection with any such guaranty, the Parent and the Borrower shall (i) cause such DevCo to execute and deliver a DevCo Mortgage, (ii) cause the Credit Party that owns Equity Interests in such DevCo to pledge all of “Material Domestic the Equity Interests of each DevCo pursuant to the Guaranty and Security Agreement (including, without limitation, delivery (if applicable) of original certificates evidencing the Equity Interests of such DevCo, 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. Upon the date that a DevCo becomes a Wholly-Owned Subsidiary, (x) the Borrower shall immediately cause such DevCo to execute a joinder and/or supplement to the Guaranty and Security Agreement, which shall supersede and replace the DevCo Guaranty executed by such DevCo and (y) such Wholly-Owned Subsidiary shall be deemed to be a Credit Party (and not a DevCo) under the Loan Documents.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Parent Issuer’s expenseClosing 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 sixty (60) days after the acquisition thereof 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 2020 Credit Agreement Closing Date any Loan Party shall or shall be required to take any action following the 2020 Credit Agreement 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 2020 Credit Agreement, then, subject to the limitations and exceptions terms of this Indenturethe 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 Date (including, without limitationfor the avoidance of doubt, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
), promptly (i) and in any event within 60 sixty (or such greater number of days specified below60) days after such formation, acquisition or designation, Person becomes a Subsidiary or such longer period as may be agreed by the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:Administrative Agent)
(Ai) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Subsidiary owned by such Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
(Cblank by a duly authorized officer of the holder(s) take of such Equity Interests, and cause all intercompany notes owing from such Subsidiary (to any Loan Party together with instruments of transfer executed and the parent delivered in blank by a duly authorized officer of such Subsidiary that is a Guarantor) Loan Party (in each case, with respect to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates Foreign Subsidiaries, to the extent certificatedapplicable and permitted under foreign laws, rules or regulations) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior necessary to the Discharge perfect a Lien under applicable Law, by means of First an applicable Collateral Document, create a Lien Secured Obligations, the Designated First Lien Representative) to vest on such Equity Interests and intercompany notes in the Collateral Agent (or in any representative favor of the Collateral Agent designated 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 itthe applicable Collateral Documents (including the Security Agreement) valid and to be duly perfected second priority Liens (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 DocumentsAgent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the extent 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 clause (b), (d), (f) or (g) of the Collateral 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 Guarantee Requirement;
(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 extent requested definition of “Excluded Subsidiary” of this sentence shall not apply to deliver (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 Designated First Lien Representative 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 First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or 2020 Credit Agreement.
(c) Promptly grant to the Collateral Agent, within sixty (60) days after such request (of the acquisition thereof or such longer period as may be agreed by the Controlling Parties (orAdministrative Agent, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree a security interest in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, mortgage in a form reasonably satisfactory to the Controlling PartiesAdministrative 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 such matters set forth a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in this Section 3.13(a) as form and substance to the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral AgentAgent 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, as applicableperfect, may reasonably request;
(iii) if reasonably requested by any Controlling Party or preserve and protect the Liens in favor of the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Agent required to be granted pursuant to the Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their full. Such Loan Party shall otherwise take such commercially reasonable discretion), 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 items necessary Loan Document to the contrary, Liens required to be granted from time to time pursuant to satisfy this Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after Documents as in effect on the Closing Sixth A&R Effective Date and subject and, to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso extent appropriate in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with applicable jurisdiction, as agreed between the Collateral Agent, the Administrative Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 3.13 within 6.11 or anything in this Agreement or any other Loan Document to the time frame required by contrary, any Subsidiary of the definition of “Material Domestic SubsidiaryCompany that Guarantees the Senior Subordinated Debt, the Senior Unsecured Debt or the 2020 Credit Agreement shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each caseSubject to this Section 5.11, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party Security Documents but is not so subject (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date)but, in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such any event, excluding any Equity Interest of a Foreign Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and Guarantee Requirementfor the benefit of the other Secured Parties, accompanied a Lien on such property subject to no Liens other than Permitted 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 (iii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Borrower 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 the Security Documents against such after-acquired properties.
(b) With respect to any person that is or becomes (A) a guarantor of (or otherwise provides, direct or indirect, credit support in respect of) the payment and/or performance of all or any portion of the obligations under or in respect of any or all the Senior Note Documents (a “Note Guarantor”) or (B) a Subsidiary of a Loan Party after the Closing Date, (y) on the Closing Date or, as applicable, within 3 Business Days after such person becomes a Note Guarantor or (z) on the Closing Date or, as applicable, within 30 days after such person becomes a Subsidiary, to (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, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized Responsible 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 Responsible Officer of such Loan Party and (Cii) take and if subsequent to the Closing Date, cause such new Subsidiary (A) to execute a Joinder Agreement to become a Subsidiary Guarantor and a Pledgor or, in the parent case of a Foreign Subsidiary, execute a security document compatible with the laws of such Subsidiary that is a GuarantorForeign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (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 Document to be duly perfected to the extent required by such Security Document in accordance with all applicable Legal Requirements, including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent restrictions) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (i) no Foreign Subsidiary shall be required to take the actions specified herein if 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 a material increase in the net income of a United States shareholder of such Subsidiary pursuant to the terms Section 951 (or a successor provision) of the Notes Documents or Code, as may reasonably determined by Borrower and (ii) no Loan Party shall be necessary required to deliver any Equity Interests in any Foreign Subsidiary under clause (i) of the reasonable opinion preceding sentence, except for (A) Voting Stock of any Controlling Subsidiary which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing no more than 66% 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. 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 5.11(b).
(c) With respect to any person that is or becomes a Subsidiary of a Loan Party (or, if after the Sell-Down Date but prior Closing Date, promptly (and in any event within 30 days after such person becomes a Subsidiary) execute and deliver to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or its designated bailee or agent) (i) a counterpart to the Intercompany Note, (ii) a Joinder Agreement (as defined in any representative of the Collateral Management Agreement) to the Collateral Management Agreement and (iii) 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 designated (and in any event within 45 days of the acquisition thereof) a security interest in and Mortgage on each Real Property owned in fee by it) valid such Loan Party as is acquired by such Loan Party after the Closing Date and perfected second priority Liens that, together with any improvements thereon, individually has a Fair Market Value of at least $2,500,000, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent required 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 Documents) Agent and shall constitute valid and enforceable perfected first priority Liens subject only to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Permitted Liens. Such Loan Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), shall promptly deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in any event within 30 days) a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative Landlord Access Agreement or the Collateral AgentBailee Letter, as applicable, may reasonably request;
with respect to each leased Real Property constituting a Key Location (iii) if reasonably requested unless the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Landlord Access Agreements or Bailee Letter, as applicable). The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by any Controlling Party or applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Agent required to be granted pursuant to the Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, enforceability, perfection and Guarantee Requirement 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 perfection such after-acquired Real Property and existence of security interests execute and/or delivery to the Collateral Agent such insurance certificates and other documentation (including with respect to property of any Guarantor acquired after the Closing Date title and subject flood insurance), in each case in form and substance reasonably satisfactory to the Administrative Agent and Collateral and Guarantee RequirementAgent, but not specifically covered by as the preceding clause (i) or (ii)Collateral Agent shall reasonably request.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Additional Collateral; Additional Guarantors. At the Parent IssuerBorrower’s expense, ,subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation herein or in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries toDocument (including any Acceptable Intercreditor Agreement), take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingfollowing actions:
(a) upon (v1) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic U.S. Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Loan Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x2) the designation in accordance with Section 3.16 6.13 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted U.S. Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) as a Restricted Subsidiary of a Loan Party or (z3) any Restricted Subsidiary ceasing to be becoming a U.S. Subsidiary (other than an Excluded Subsidiary:
) of a Loan Party, within sixty (i) within 60 (or such greater number of days specified below60) days after such formation, acquisition or acquisition, designation, occurrence or, in each case, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their (or its) its reasonable discretion:
(Ai) cause each such Subsidiary to duly execute and deliver to the Trustee and Administrative Agent or the Collateral Agent, other than with respect to any Excluded AssetsAgent (as appropriate) a Joinder Agreement, a Guarantor Supplemental Indenture, completed Security Agreement SupplementsSupplement, any applicable Intellectual Property Security AgreementsAgreement(s), a counterpart of the Intercompany Note Note, a counterpart acknowledgment to any Acceptable Intercreditor Agreement(s), if applicable, and other security agreements and documents documents, as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Collateral Agent (consistent with the Security Agreement, Intellectual Property Security Agreements Agreement and other security agreements Collateral Documents in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Bii) cause each such Subsidiary (and the parent of each such Subsidiary that is a GuarantorLoan Party) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, that are required to be pledged pursuant to the Collateral and Guarantee RequirementSecurity Agreement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and, and instruments evidencing Indebtedness held by such Subsidiary and required to be pledged pursuant to the Security Agreement, accompanied by undated note transfer powers or indorsed in blank to the Collateral Agent;
(Ciii) upon reasonable request of the Collateral Agent, take and cause such Subsidiary (and the each direct or indirect parent of such Subsidiary that is (or is required to be) a Guarantor) Loan Party pursuant hereto to take take, whatever action (including the recording of the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates certificates, to the extent certificated) as may certificated and required to be required delivered pursuant to the terms of the Notes Documents or Security Agreement) as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required hereby or by the Collateral Documents) to the extent required by the Collateral and Guarantee RequirementSecurity Agreement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired on or after the Parent Issuer’s expense, date hereof by Borrower or any other Loan Party that is intended to be subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties or assets.
(b) With respect to any person that is or becomes a Wholly Owned Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such person becomes a Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided that with respect to any Foreign Subsidiary of Borrower, 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), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary, and (Cii) take and cause such new Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation and a joinder agreement to the parent of such Subsidiary that is a GuarantorSecurity Agreement, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty .
(60c) days after such request If at any time any two or more Wholly Owned Subsidiaries in the aggregate (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes any Foreign Subsidiary of Borrower that is not a “first-tier” Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10.0 million, then Borrower shall, and shall cause one or more of such legal opinions resulting from a change in LawSubsidiaries to, change in fact or change to counsel’s form of opinion (and prior to comply with Section 5.11(b) within the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters time frames set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative such subsection so that no two or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party more such Subsidiaries hold assets having either a book value or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge fair market value in excess of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)$10.0 million.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations Lien created by the Security Documents (which shall include all properties of each Loan Party acquired after the Closing Date other than (x) Excluded Assets and exceptions of this Indenture(y) any assets specifically excluded from the Lien created by any Security Document as set forth in such Security Document) but is not so subject, includingpromptly (and in any event within 30 days after the acquisition thereof or such later time as permitted by the applicable Security Document) (i) execute and deliver to the Administrative Agent and the Security Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Security Agent shall deem necessary or advisable to grant to the Security Agent, without limitation, for its benefit and for the provisions benefit of the Collateral other Secured Parties, a Lien on such property subject to no Liens other than Permitted Liens and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, (ii) take all action actions necessary or to cause such Lien to be duly perfected to the extent required by such 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. Holdings shall otherwise take such actions and execute and/or deliver to the Security Agent such documents as the Administrative Agent or the Security Agent shall reasonably request to confirm the validity, perfection and priority of the Lien of the Security Documents on such after-acquired properties. Notwithstanding the foregoing, any Controlling Party (or, if required filings with the United States Patent and Trademark Office and United States Copyright Office shall be made within 60 days after the Sell-Down Date but prior to acquisition of the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues related property is required to be satisfied, including:reported pursuant to Section 5.01(d).
(ab) upon With respect to (vx) the formation any person that is or acquisition of any new direct or indirect wholly-owned Material Domestic becomes a Subsidiary (in each case, other than an Excluded Unrestricted Subsidiary or other Immaterial Subsidiary) by any Note Party, (w) an election by after the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary)Closing Date, (y) any Subsidiary becoming a wholly-owned Material Domestic previously designated by Holdings 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 Holdings as no longer being an Immaterial Subsidiary pursuant to Section 5.11(c) (in each case, other than unless such Subsidiary is designated by Holdings as an Excluded SubsidiaryUnrestricted Subsidiary pursuant to Section 5.15) or (z) any other Subsidiary that was previously an Unrestricted Subsidiary but has been redesignated by Holdings as a Restricted Subsidiary ceasing (unless such Subsidiary is designated by Holdings as an Immaterial Subsidiary pursuant to be the definition thereof), in each case promptly (and in any event within 30 days after such person becomes a Subsidiary or is no longer an Excluded Immaterial Subsidiary or an Unrestricted Subsidiary:
, or, in the case of a person that becomes a Subsidiary in connection with a Permitted Acquisition that is consummated by means of a “two-step” acquisition, the earlier of (A) 120 days after the closing of the tender offer or other fist step or (B) 30 days after such Subsidiary becomes a Wholly Owned Subsidiary, or, in each case, such later date as is acceptable to the Administrative Agent in its sole discretion) (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior grant to the Discharge Security Agent, for the benefit of First Lien the Secured ObligationsParties, a security interest in all of the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each Equity Interests of such Subsidiary owned by such Loan Party and all intercompany Indebtedness owing from such Subsidiary to duly execute and deliver such Loan Party, in each case pursuant to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and agreement in form and substance reasonably satisfactory to the Controlling Parties (orAdministrative Agent, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Security Agent the certificates (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreementif any) any and representing all certificates representing such Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of such Loan Party) and all such intercompany notes representing such intercompany Indebtedness (Ctogether with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party) take and (ii) if such Subsidiary is a Wholly Owned Subsidiary and not otherwise an Excluded Subsidiary, cause such Subsidiary (A) to execute (I) a Joinder Agreement or such comparable documentation to become a Guarantor and (II) a joinder agreement to the parent applicable Security Document, substantially in the form annexed thereto, or a security agreement compatible with the laws of such Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent (and, for the avoidance of doubt, under which a Lien is granted to the Security Agent, for the benefit of the Secured Parties to secure the Secured Obligations, on all the property of such Subsidiary that is a Guarantor(other than Excluded Assets), subject to no Liens other than Permitted Liens) and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may the Security Agent to cause the Lien created by the applicable Security Document to be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral Documentsfiling of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Security Agent. In addition to the foregoing, with respect to any Subsidiary that becomes a Guarantor pursuant to this Section 5.11, the Borrowers shall deliver, or caused to be delivered, to the Administrative Agent documentation with respect to such Subsidiary of the type described in Section 4.01(b) and, if requested by the Administrative Agent and customary in the relevant jurisdiction, a legal opinion or legal opinions with respect to such Subsidiary the scope of which is consistent with the legal opinions delivered pursuant to Section 4.01(f) and covering such other matters with respect to such Subsidiary and the Liens granted in its properties and Equity Interests as may reasonably be requested by the Administrative Agent. Holdings shall provide the Administrative Agent with written notice (and the Administrative Agent shall subsequently notify the other Agents, the Issuing Banks and the Lenders) of its intention to cause a Subsidiary to execute a Joinder Agreement or such comparable documentation to become a Guarantor sufficiently in advance of such event to allow the Agents, the Issuing Banks and the Lenders to carry out any “know your customer” or other checks.
(c) To the extent the consolidated total assets for all Immaterial Subsidiaries or that portion of Consolidated EBITDA attributable to all Immaterial Subsidiaries in the aggregate exceed the amounts specified in the proviso to the definition of the term “Immaterial Subsidiary”, Holdings shall cause one or more Immaterial Subsidiaries to become Guarantors to the extent required by Section 5.11(b) such that the consolidated total assets for all remaining Immaterial Subsidiaries and that portion of Consolidated EBITDA attributable to all remaining Immaterial Subsidiaries in the aggregate do not exceed the amounts specified in the proviso to such definition.
(d) Notwithstanding anything to the contrary in this Section 5.11, (i) assets will be excluded from the Collateral and Guarantee Requirement;
in circumstances where the Administrative Agent reasonably determines that the cost of obtaining a security interest in such assets is excessive in relation to the value afforded thereby, or to the extent the granting of a security interest in such asset (or portion thereof) would be prohibited by enforceable (after giving effect to all applicable provisions of law, including relevant provisions of the UCC) anti-assignment provisions of any contract or by applicable law, (ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or in no event shall the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior be required to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates include any Excluded Assets and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by this Section 5.11 shall not apply to any Controlling Party Subsidiary (or the Collateral AgentEquity Interests therein) that is designated to become (and reasonably promptly after its formation becomes) Super Holdco; provided that Holdings may, within sixty in its sole discretion, require Super Holdco to become a Guarantor hereunder, in which case (60A) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to Super Holdco shall satisfy the Collateral requirements of clause (ii) of Section 5.11(b) as if it were a Subsidiary that is Wholly Owned Subsidiary and Guarantee Requirement with respect not an Excluded Subsidiary, (B) Super Holdco shall pledge 100% of the Equity Interests in Holdings pursuant to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or of Section 5.11(b) as if Holdings was a Subsidiary and (ii).
C) thereafter, each reference in this Agreement to Holdings (bother than under (1) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of the term “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by Change in Control”, (2) the definition of the term “Material Domestic SubsidiaryGuarantors”, (3) the definition of the term “Public Company”, (4) the definition of the term “U.K. Security Agreements” and (5) Section 6.18) shall be deemed to be a reference to Super Holdco.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject Subject in all respects to the limitations definition of Excluded Properties and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingExcluded Perfections:
(a) upon (v) Subject to this Section 5.10 and prior to the formation or acquisition of Investment Grade Date, with respect to any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) property acquired after the Effective Date by any Note Party, (w) an election by the Parent Issuer Loan Party that is intended to designate a Restricted Subsidiary as a Guarantor pursuant be subject to the definition Lien created by any of “Guarantor”the Security Documents but is not so subject, promptly (xand in any event within 30 days after the acquisition thereof, subject to extension in the sole discretion of the Collateral Agent) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Laws, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to 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 Security Documents against such after-acquired properties.
(orb) With respect to any person that becomes a Restricted Subsidiary after the Effective Date or with respect to any Joint Venture equity interest created or acquired by the Borrower or any Restricted Subsidiary after the Effective Date, Borrower’s or such Restricted Subsidiary’s equity ownership interest in such Restricted Subsidiary or Joint Venture shall be pledged as provided in Section 5.1 of the Security Agreement, promptly (and in any event within 30 days after such person becomes a Restricted Subsidiary or a Joint Venture, subject to extension in the sole discretion of the Collateral Agent) (i) prior to the Discharge of First Lien Secured ObligationsInvestment Grade Date, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied if any, representing all of the Equity Interests of such Restricted Subsidiary or all of the Equity Interests of such Joint Venture that are owned by the Borrower or a Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (Cii) take and cause such new Restricted Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent Security Agreement, substantially in the form annexed thereto or, in the case of such a Foreign Subsidiary that is a GuarantorRestricted 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 whatever action (including all actions necessary or reasonably advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (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 DocumentsAgent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the extent Collateral Agent pursuant to clause (i) of this Section 5.10(b) shall not include any Equity Interests of a Foreign Subsidiary created or acquired after the Effective Date and (2) no Foreign Subsidiary shall be required by to take the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 5.10(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 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; provided that this exception shall not apply to (A) Voting Stock of any Restricted Subsidiary 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 of such Restricted Subsidiary and (B) 100% of the Equity Interests not constituting Voting Stock of any such Restricted 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 5.10(b).
(c) Prior to the extent requested Investment Grade Date, promptly grant to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty 60 days (60subject to extension in the sole discretion of the Collateral Agent) days after of the acquisition thereof, a security interest in and Mortgage on (i) each Real Property owned in fee by such request (or Loan Party acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Effective Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $35.0 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 in excess of $35.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in Law, change in fact or change to counsel’s form of local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;) in respect of such Mortgage).
(iiid) if reasonably requested by any Controlling Party or Prior to the Investment Grade Date, promptly grant to the Collateral Agent, within sixty (60) 60 days after such request (or such longer period later date as agreed to by the Controlling Parties Collateral Agent in its sole discretion) of (ori) the acquisition of a Pipeline by a Loan Party to the extent that such Pipeline, if after the Sell-Down Pipeline ROWs for such Pipeline system and the real property that is part of such Pipeline system have an aggregate purchase price which equals or exceeds $25.0 million and (ii) the Commercial Operation Date but of a Pipeline to the extent the aggregate capital cost of such Pipeline, the Pipeline ROWs for such Pipeline system and the real property that is part of such Pipeline system have an aggregate capital cost (inclusive of acquisition and capital costs expended prior to the Discharge acquisition thereof, if applicable) equal to or exceeding $25 million, a security interest in such Pipeline (to be perfected by a transmitting utility UCC financing statement) and a Mortgage on the Pipeline, the Pipeline ROWs for such Pipeline and all real property that is part of First Lien such Pipeline system and that is owned in fee by a Loan Party, in each case, as additional security for the Secured Obligations. 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 Designated First Lien Representative) may agree Liens in writing favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in their reasonable discretion), connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral and Guarantee Requirement with respect Agent shall reasonably require to confirm the validity, perfection and existence priority of security interests with respect to property the Lien of any Guarantor existing Mortgage or new Mortgage against such after-acquired after the Closing Date Pipeline (including a local counsel opinion (in form and subject substance reasonably satisfactory to the Administrative Agent and the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (iAgent) or (iiin respect of such Mortgage).
(be) requiring each Domestic Subsidiary Prior to the Investment Grade Date, promptly grant to the Collateral Agent, within 60 days (subject to extension in the sole discretion of the Collateral Agent), a security interest in and Mortgage lien on (i) any Building or Manufactured (Mobile) Home on any Mortgaged Property that individually has a replacement value of at least $25.0 million, as additional security for the Secured Obligations. Such Mortgage shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent. The Mortgage 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 designated as a “Material Domestic Subsidiary” granted pursuant to the proviso Mortgage 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 Building or Manufactured (Mobile) Home (including (i) a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent), (ii) a Life of Loan flood hazard determination with respect to the parcel of real property on which such Building or Manufactured (Mobile) Home is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by Borrower and each Loan Party related thereto) and (iii) in the definition event such Building or Manufactured (Mobile) Home is located in an area identified by the Federal Emergency Management Agency (or successor agency) as a Special Flood Hazard Area with respect to where flood insurance has been made available under the National Flood Insurance Act of “Material Domestic Subsidiary” 1968 (as now or hereinafter in effect or successor act thereto) evidence of flood insurance in form and substance reasonably acceptable to have taken the Administrative Agent and Collateral Agent) in respect of such Mortgage.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Security Documents, any Loan Document or any other document executed in connection herewith, on or after Investment Grade Date, all actions to comply Collateral and the Security Documents shall be released automatically and terminated without any further action. In connection with the provisions foregoing, the Collateral Agent shall, at Borrower’s expense, promptly execute and file in the appropriate location and deliver to Borrower and each such Guarantor or Guarantor’s designee such termination and full or partial release statements or confirmation thereof, as applicable, and do such other things as are necessary to release the liens to be released pursuant hereto promptly upon the effectiveness of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiaryany such release.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At a. Subject to this Section 5.11, with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Security Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 60 days after the Sell-Down Date but prior acquisition thereof or such longer period as may be approved in writing by the Administrative Agent in its reasonable discretion) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably necessary or advisable to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Collateral Liens, and (ii) take all actions reasonably necessary to cause such Lien to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant duly perfected to the definition of “Guarantor”, (x) the designation extent required by such Security Document in accordance with Section 3.16 all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. Borrower 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 the Security Documents on such after-acquired properties; provided, that notwithstanding anything to the contrary herein or in any existing direct Loan Document, the Loan Parties shall not have any obligation to perfect any security interest under any Loan Document in any Intellectual Property Collateral included in the Collateral in any jurisdiction outside of the United States.
b. With respect to any person that is or indirect wholly-owned Material Domestic becomes a Subsidiary as of a Restricted Loan Party after the Closing Date or any Subsidiary that ceases to be an Excluded Subsidiary or a JV Subsidiary (in each case, other than to the extent such JV Subsidiary would not then otherwise be an Excluded Subsidiary), promptly (y) and in any event within 60 days after such person becomes a Subsidiary becoming of a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) Loan Party or (z) any Restricted Subsidiary ceasing so ceases to be an Excluded Subsidiary:
Subsidiary or a JV Subsidiary (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree be approved in writing by the Administrative Agent in their (or its) its reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative)) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Bi) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Subsidiary, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 (Cother than secured intercompany notes owed by any Foreign Subsidiary to any Domestic Subsidiary) take 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 (other than (x) a JV Subsidiary unless required by Section 5.11(c) or (y) an Excluded Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent of such Subsidiary that is a Guarantorapplicable Security Agreement, substantially in the form annexed thereto and (B) to take whatever action (including all actions reasonably necessary or advisable to cause the filing of UCC financing statements and delivery of stock and membership interest certificates Lien created by the applicable Security Agreement to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and duly perfected second priority Liens (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 DocumentsAgent. Notwithstanding the foregoing, the Equity Interests required to be delivered to the Collateral Agent pursuant to clause (i) of this Section 5.11(b) shall not include any Equity Interests of a Foreign Subsidiary; provided that this exception shall not apply to (A) Voting Stock of any Subsidiary which is a first-tier CFC 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 5.11(b).
c. Notwithstanding the foregoing, but subject to the last sentence of Section 5.11(b) Borrower shall use its commercially reasonable efforts (A) to grant to the Collateral Agent a security interest in the Equity Interest of any newly-formed or after-acquired JV Subsidiary owned directly by any Loan Party and (B) in the case of any JV Subsidiary in which any Loan Party directly or indirectly owns at least 80% of the voting or economic interest, to cause such JV Subsidiary to (i) become a Subsidiary Guarantor, (ii) execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Security Agreement, substantially in the form annexed thereto and, in the case of a Foreign Subsidiary, at the request of the Administrative Agent, 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 (iii) 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 Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent (in each case, it being understood that such efforts shall not require any Controlling Party material economic or other significant concessions or result in any material adverse tax consequences with respect the terms or structure of such joint venture arrangements).
d. Promptly grant to the Collateral Agent, within sixty (60) 90 days after such request of the acquisition thereof (or such longer period as may be approved by the Controlling Parties (orAdministrative Agent in its reasonable discretion in writing), if a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Sell-Down Closing Date but prior and that, together with any improvements thereon, has a purchase price of at least $5,000,000, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their full. Such Loan Party shall otherwise take such reasonable discretion), actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch reasonable documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in LawTitle Policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after in respect of such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiMortgage).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At a. Subject to the Parent Issuer’s expenseClosing Date Intercreditor Agreement and this Section 5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Security Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 60 days after the Sell-Down Date but prior acquisition thereof or such longer period as may be approved in writing by the Administrative Agent as directed by the Required Lenders) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably necessary or advisable to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Collateral Liens, and (ii) take all actions reasonably necessary to cause such Lien to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant duly perfected to the definition of “Guarantor”, (x) the designation extent required by such Security Document in accordance with Section 3.16 all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. Borrower 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 the Security Documents on such after-acquired properties; provided that notwithstanding anything to the contrary herein or in any existing direct Loan Document, the Loan Parties shall not have any obligation to perfect any security interest under any Loan Document in any Intellectual Property Collateral included in the Collateral in any jurisdiction outside of the United States.
b. Subject to the terms of the Closing Date Intercreditor Agreement, with respect to any person that is or indirect wholly-owned Material Domestic becomes a Subsidiary as of a Restricted Loan Party after the Closing Date or any Subsidiary that ceases to be an Excluded Subsidiary or a JV Subsidiary (in each case, other than to the extent such JV Subsidiary would not then otherwise be an Excluded Subsidiary), promptly (y) and in any event within 60 days after such person becomes a Subsidiary becoming of a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) Loan Party or (z) any Restricted Subsidiary ceasing so ceases to be an Excluded Subsidiary:
Subsidiary or a JV Subsidiary (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree be approved in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Administrative Agent or any Controlling Party (or, if after as directed by the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeRequired Lenders)) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Bi) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Subsidiary, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 (Cother than secured intercompany notes owed by any Foreign Subsidiary to any Domestic Subsidiary) take 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 (other than (x) a JV Subsidiary unless required by Section 5.11(c) or (y) an Excluded Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent of such Subsidiary that is a Guarantorapplicable Security Agreement, substantially in the form annexed thereto and (B) to take whatever action (all actions reasonably necessary or advisable 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 UCC financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, the Equity Interests required to be delivered to the Collateral Agent pursuant to clause (i) of this Section 5.11(b) shall not include any Equity Interests of a Foreign Subsidiary; provided that this exception shall not apply to (A) Voting Stock of any Subsidiary which is a first-tier CFC representing 65% of the total voting power of all outstanding Voting Stock of such Subsidiary and delivery (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 5.11(b).
c. Notwithstanding the foregoing, but subject to the last sentence of Section 5.11(b), Borrower shall use its commercially reasonable efforts (A) to grant to the Collateral Agent a security interest in the Equity Interest of any newly-formed or after-acquired JV Subsidiary owned directly by any Loan Party and membership interest certificates (B) in the case of any JV Subsidiary in which any Loan Party directly or indirectly owns at least 80% of the voting or economic interest, to cause such JV Subsidiary to (i) become a Subsidiary Guarantor, (ii) execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Security Agreement, substantially in the form annexed thereto and, in the case of a Foreign Subsidiary, at the request of the Administrative Agent, 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 (iii) 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 Security Agreement to be duly perfected to the extent certificated) required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be required pursuant reasonably requested by the Administrative Agent or the Collateral Agent (in each case, it being understood that such efforts shall not require any material economic or other significant concessions or result in any material adverse tax consequences with respect the terms or structure of such joint venture arrangements).
d. Subject to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (orClosing Date Intercreditor Agreement, if after the Sell-Down Date but prior promptly grant to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) 90 days after such request of the acquisition thereof (or such longer period as may be approved by the Controlling Parties (orAdministrative Agent in its reasonable discretion in writing), if a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Sell-Down Closing Date but prior and that, together with any improvements thereon, has a purchase price of at least $5,000,000, as - 87 - additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their full. Such Loan Party shall otherwise take such reasonable discretion), actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch reasonable documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in LawTitle Policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after in respect of such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiMortgage).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Second Lien Credit Agreement (CPI International Holding Corp.)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired after the Parent Issuer’s expense, Fifth ARCA Effective Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Security Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 30 days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representativeacquisition thereof) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Requirements of Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to 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 Security Documents against such after-acquired properties.
(or, prior b) With respect to any person that is or becomes a Subsidiary after the Discharge Fifth ARCA Effective Date (other than a Joint Venture; provided that for the purposes of First Lien Secured ObligationsSection 5.11(b)(i), the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties RIGS Joint Venture and any Joint Venture created pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreementan investment under Section 6.04(j) any and all certificates representing Equity Interests (shall be deemed to be a Subsidiary to the extent certificatedof Borrower’s equity ownership interest therein and Borrower’s equity ownership interest thereof shall be pledged as provided in Section 5.1 of the Security Agreement), intercompany notes promptly (to the extent certificatedand in any event within 30 days after such person becomes a Subsidiary) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant (i) deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing all of the Equity Interests of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (Cii) take and cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent applicable 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 Subsidiary that is a GuarantorForeign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (including all actions necessary or reasonably advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Agreement to be duly perfected second priority Liens (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 DocumentsAgent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the extent Collateral Agent pursuant to clause (i) of this Section 5.11(b) shall not include any Equity Interests of a Foreign Subsidiary created or acquired after the Fifth ARCA Effective Date and (2) no Foreign Subsidiary shall be required by to take the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 5.11(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 a material increase in the extent requested net income of a United States shareholder of such Subsidiary pursuant to deliver Section 951 (or a successor provision) of the Code; provided that this exception shall not apply to (A) Voting Stock of any Subsidiary which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 66% 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 Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge meaning of First Lien Secured Obligations if reasonably requested by any Controlling Party or Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes of this Section 5.11(b).
(c) Promptly grant to the Collateral Agent, within sixty 60 days (60subject to extension in the sole discretion of the Collateral Agent) days after of the acquisition thereof, a security interest in and Mortgage on (i) each Real Property owned in fee by such request (or Loan Par- ty as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Fifth ARCA Effective Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $5.0 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 $5.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in Law, change in fact or change to counsel’s form of local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;) in respect of such Mortgage).
(iiid) if reasonably requested by any Controlling Party or Promptly grant to the Collateral Agent, within sixty 60 days (60subject to extension in the sole discretion of the Collateral Agent) days after of the acquisition thereof, a security interest in and Mortgage on (i) each Pipeline owned in fee by such request (or Loan Party as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Fifth ARCA Effective Date but prior and that, together with any improvements thereon and any related unmortgaged Pipeline, has a fair market value of at least $5.0 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 $5.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral and Guarantee Requirement with respect Agent shall reasonably require to confirm the validity, perfection and existence priority of security interests with respect to property the Lien of any Guarantor existing Mortgage or new Mortgage against such after-acquired after the Closing Date Pipeline (including a local counsel opinion (in form and subject substance reasonably satisfactory to the Administrative Agent and the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (iAgent) or (iiin respect of such Mortgage).
(be) requiring each Domestic Subsidiary Promptly grant to the Collateral Agent, within 60 days (subject to extension in the sole discretion of the Collateral Agent), a security interest in and Mortgage lien on (i) any Building or Manufactured (Mobile) Home on any Mortgaged Property that individually has a fair market value of at least $5.0 million, as additional security for the Secured Obligations. Such Mortgage shall be granted pursuant to documentation reasonably satisfactory in form and sub- stance to the Administrative Agent and the Collateral Agent. The Mortgage 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 designated as a “Material Domestic Subsidiary” granted pursuant to the proviso Mortgage 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 Building or Manufactured (Mobile) Home (including (i) a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent), (ii) a Life of Loan flood hazard determination with respect to the parcel of real property on which such Building or Manufactured (Mobile) Home is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by Borrower and each Loan Party related thereto) and (iii) in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required event such Building or Manufactured (Mobile) Home is located in an area identified by the definition Federal Emergency Management Agency (or successor agency) as a Special Flood Hazard Area with respect to where flood insurance has been made available under the National Flood Insurance Act of “Material Domestic Subsidiary1968 (as now or hereinafter in effect or successor act thereto) evidence of flood insurance in form and substance reasonably acceptable to the Administrative Agent and Collateral Agent) in respect of such Mortgage.”
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Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired after the Parent Issuer’s expense, Effective Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 30 days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representativeacquisition thereof) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note for its benefit and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the other Secured Parties pursuant Parties, a Lien on such property subject to Article 3 of the First Lien/Second no Liens other than Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to be duly perfected to the extent certificated)required by such Collateral Document in accordance with all applicable Requirements of Law, intercompany notes (including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrower shall otherwise take such actions and execute and/or deliver to the extent certificatedAdministrative Agent such documents as the Administrative Agent shall 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 a Subsidiary or becomes a Subsidiary after the Effective Date, promptly (and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant any event within 30 days after such person becomes a Subsidiary) (i) deliver to the Collateral and Guarantee RequirementAdministrative Agent the certificates, accompanied by if any, representing all of the Equity Interests of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (Cii) take and cause such Subsidiary (and the parent of such new Subsidiary that is a GuarantorDomestic Subsidiary or a Foreign Electing Subsidiary (A) to execute a Subsidiary Guaranty, or a a joinder agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the Security Agreement, substantially in the form annexed thereto and (B) to take whatever action (including all actions reasonably necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents or as may be necessary in Administrative Agent to cause the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in created by the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and Documents to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral Documentsfiling of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. Notwithstanding the foregoing or any other provision herein or in any other Loan Document, (1) the pledge requirements of this Section 5.11(b) shall not apply to the granting of a security interest by any Foreign Subsidiary other than a Foreign Electing Subsidiary; provided that this exception shall not apply to (A) Voting Stock of any Subsidiary which is a 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 of such Subsidiary and (B) 100% of the Equity Interests not constituting Voting Stock of any Subsidiary 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 for purposes of this Section 5.11(b), (2) the Equity Interests in a Foreign Subsidiary required to be pledged or delivered hereunder shall only be required to the extent such Foreign Subsidiary is a Material Foreign Subsidiary (it being understood and agreed that the Material Foreign Subsidiaries as of the Effective Date are the UK Guarantor and Xxxxxx GmbH) and (3) no pledge agreement in respect of the Equity Interests of a Material Foreign Subsidiary shall be required by hereunder (i) until June 30, 2010 or such later date as the Collateral Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and Guarantee Requirement;
(ii) to the extent requested to deliver the Administrative Agent shall reasonably determine that the costs of obtaining such a pledge are excessive in relation to the Designated First Lien Representative value of the security to be afforded thereby. Immediately as of the date any Foreign Subsidiary ceases to be a Foreign Electing Subsidiary, (a) such Foreign Subsidiary shall cease to be a Subsidiary Guarantor and shall be released from its Obligations under the First Subsidiary Guaranty and (b) any Collateral (including any Equity Interests) pledged by such Foreign Subsidiary shall be released from the Lien Financing Documents or, after of the Discharge of First Lien Secured Obligations if Administrative Agent. The Administrative Agent shall take such actions and execute such documents and instruments as the Borrower may reasonably requested by any Controlling Party or request (and at the Collateral Borrower’s expense) to evidence such release.
(c) Promptly grant to the Administrative Agent, within sixty (60) 30 days after of the acquisition thereof, a security interest in and Mortgage on each Real Property owned in fee by such request (or Loan Party as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Effective Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $1,000,000. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Discharge Administrative Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Administrative Agent. The Mortgages or Mortgage 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 First Lien Secured Obligationsthe Administrative Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Administrative Agent customary legal opinionssuch documents as the Administrative Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in LawTitle Policy, change in fact or change to counsel’s form of a Survey, a local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling PartiesAdministrative Agent) in respect of such Mortgage, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary in order for the owner or holder of the fee or leasehold interest constituting such Mortgaged Property to such matters set forth in this Section 3.13(a) as grant the Controlling Party, Lien contemplated by the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement Mortgage with respect to perfection such Mortgaged Property, such affidavits, certificates, information (including financial data) and existence instruments of security interests indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the Title Policies, evidence reasonably acceptable to the Administrative Agent of payment by the 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 the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests, if any, and to the extent any of the 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 attornment agreement, and shall otherwise be acceptable to the Administrative Agent, a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to property of each Mortgaged Property and any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame other Mortgage Instrument reasonably required by the definition of “Material Domestic SubsidiaryAdministrative Agent).”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any Property acquired after the Parent Issuer’s expense, Original Closing Date by Borrower or any other Loan Party that is intended to be subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 30 days after the acquisition 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Administrative Agent and Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch reasonable documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties 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 not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such Person becomes a Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided, that with 102 respect to any first-tier Foreign Subsidiary, 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 pledge 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; and
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 together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary, and (Cii) take and cause such new Subsidiary (other than any Foreign Subsidiary if such pledge 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 or such comparable documentation and a joinder agreement to the parent of such Subsidiary that Security Documents in the form annexed thereto which is a Guarantorin form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents all actions necessary or as may be necessary advisable in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated to cause the Lien created by it) valid and the Security Agreements to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required filing of financing statements in such jurisdictions as may be reasonably requested by the Collateral and Guarantee Requirement;Agent.
(iic) If at any time any one or more Wholly Owned Subsidiaries in the aggregate (other than any Foreign Subsidiary that is not a "first-tier" Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10.0 million, then Borrower shall, and shall cause one or more of such Subsidiaries to, comply with Section 5.11(b) within the extent requested time frames set forth in such subsection so that no one or more such Subsidiaries in the aggregate hold assets having either a book value or fair market value in excess of $10.0 million.
(d) Each Loan Party will promptly grant to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) 60 days after of the acquisition thereof, a security interest in and Mortgage Lien on each owned or leased Real Property of such request (or Loan Party as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Original Closing Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $1.0 million, as additional security for the Obligations (unless the subject Property is already mortgaged to a third party to the Discharge 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 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 to establish, perfect, preserve and protect the Liens in favor of First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including, without limitation, a change in LawTitle Policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after in respect of such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiMortgage).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.13 and Section 6.15(b) and, solely with respect to any Foreign Guarantor or any Collateral Document governed by foreign Law, the Parent Issuer’s expenseAgreed Security Principles, the Legal Reservations and the Legal Limitations, with respect to any property (or material property, in respect of IP Rights) acquired after the Closing Date by any Debtor that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party event within thirty (or, if 30) days after the Sell-Down Date but prior acquisition thereof 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 Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) 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 in good faith to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues for the benefit of the other Secured Parties or to the relevant Secured Parties directly, as applicable, a Lien on such property subject to no Liens other than Liens permitted pursuant to Section 7.01, and (ii) take all commercially reasonable actions necessary to cause such Lien to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant duly perfected to the definition of “Guarantor”, (x) the designation extent required by such Collateral Document in accordance with Section 3.16 all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested in good faith by 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 Collateral Agent shall reasonably require in good faith to confirm the validity, perfection and priority (subject to the Intercreditor Agreement) of the Lien of the Collateral Documents on such after-acquired properties.
(b) In the case of any existing direct or indirect wholly-owned Material Domestic Subsidiary U.S. Guarantor, grant to the Collateral Agent, as a Restricted Subsidiary soon as practicable but in any event within sixty (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below60) days after such formation, of the acquisition or designation, thereof or such longer period as the Controlling Parties (orCollateral Agent may determine, if in its sole discretion, a Mortgage on each parcel of Real Property located in the U.S. owned in fee or otherwise with legal title or ground leased such U.S. Guarantor as is acquired by such U.S. Guarantor after the Sell-Down Closing Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $5,000,000 as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:extent permitted hereunder).
(Ai) cause In the case of any U.S. Guarantor, grant to the Collateral Agent, as soon as practicable but in any event within sixty (60) days of the acquisition thereof or such longer period as the Collateral Agent may determine in its sole discretion, a Mortgage in form reasonably satisfactory to the Administrative Agent and Collateral Agent on each pipeline easement and other similar Real Property located in the U.S. (except any such Subsidiary 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 U.S. Guarantor after the Closing Date as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder).
(ii) Such 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 U.S. Guarantor shall otherwise take such commercially reasonable actions and execute and and/or deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and Agent such documents as reasonably requested by the Administrative Agent or the Collateral Agent or any Controlling Party shall reasonably require in good faith to confirm the validity, perfection and priority (or, if after the Sell-Down Date but prior subject to the Discharge Intercreditor Agreement) of First the Lien Secured Obligationsof any existing Mortgage or new Mortgage against such after-acquired Real Property (including, to the Designated First Lien Representative) and extent the Administrative Agent or the Collateral Agent determines in its reasonable good faith judgment that there is an issue of state Law that should be addressed by a legal opinion, a local counsel opinion in form and substance reasonably satisfactory to the Controlling Parties Administrative Agent and the Collateral Agent in respect of such Mortgage).
(orc) Subject, if after the Sell-Down Date but prior solely with respect to the Discharge of First Lien Secured ObligationsCompany and each Foreign Subsidiary, to the Agreed Security Principles, the Designated First Lien Representative) (consistent with Legal Reservations and the Security AgreementLegal Limitations, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (of the Company and the parent of each such any Subsidiary that is not already a Guarantor hereunder and that is a “Foreign Guarantor” or a “US Guarantor” under and as defined in the DIP ABL Credit Agreement to become a Foreign Guarantor or U.S. Guarantor hereunder, as applicable.
(d) to deliver Notwithstanding the foregoing provisions of this Section 6.13 or anything in this Agreement or any other Loan Document to the Collateral Agent (orcontrary, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are Liens required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary granted from time to time pursuant to satisfy the this Section 6.13 by Foreign Guarantors or under Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and Documents governed by foreign Law shall be subject to the Agreed Security Principles, the Legal Reservations and the Legal Limitations and exceptions and limitations set forth in such Collateral and Guarantee RequirementDocuments and, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso extent appropriate in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with applicable jurisdiction, as agreed between the provisions of this Section 3.13 within Collateral Agent and the time frame required by the definition of “Material Domestic SubsidiaryCompany.”
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Millennium Chemicals Inc)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject Subject in all respects to the limitations definition of Excluded Properties and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingExcluded Perfections:
(a) upon (v) Subject to this Section 5.10 and prior to the formation or acquisition of Investment Grade Date, with respect to any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) property acquired after the Effective Date by any Note Party, (w) an election by the Parent Issuer Loan Party that is intended to designate a Restricted Subsidiary as a Guarantor pursuant be subject to the definition Lien created by any of “Guarantor”the Security Documents but is not so subject, promptly (xand in any event within 30 days after the acquisition thereof, subject to extension in the sole discretion of the Collateral Agent) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Permitted Collateral Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Laws, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to 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 Security Documents against such after-acquired properties.
(orb) With respect to any person that becomes a Restricted Subsidiary after the Effective Date or with respect to any Joint Venture equity interest created or acquired by the Borrower or any Restricted Subsidiary after the Effective Date, Borrower’s or such Restricted Subsidiary’s equity ownership interest in such Restricted Subsidiary or Joint Venture shall be pledged as provided in Section 5.1 of the Security Agreement), promptly (and in any event within 30 days after such person becomes a Restricted Subsidiary or a Joint Venture, subject to extension in the sole discretion of the Collateral Agent) (i) prior to the Discharge of First Lien Secured ObligationsInvestment Grade Date, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied if any, representing all of the Equity Interests of such Restricted Subsidiary or all of the Equity Interests of such Joint Venture that are owned by the Borrower or a Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (Cii) take and cause such new Restricted Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent Security Agreement, substantially in the form annexed thereto or, in the case of such a Foreign Subsidiary that is a GuarantorRestricted 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 whatever action (including all actions necessary or reasonably advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (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 DocumentsAgent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the extent Collateral Agent pursuant to clause (i) of this Section 5.10(b) shall not include any Equity Interests of a Foreign Subsidiary created or acquired after the Effective Date and (2) no Foreign Subsidiary shall be required by to take the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 5.10(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 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; provided that this exception shall not apply to (A) Voting Stock of any Restricted Subsidiary 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 of such Restricted Subsidiary and (B) 100% of the Equity Interests not constituting Voting Stock of any such Restricted 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 5.10(b).
(c) Prior to the extent requested Investment Grade Date, promptly grant to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty 60 days (60subject to extension in the sole discretion of the Collateral Agent) days after of the acquisition thereof, a security interest in and Mortgage on (i) each Real Property owned in fee by such request (or Loan Party acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Effective Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $25.0 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 in excess of $25.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in Law, change in fact or change to counsel’s form of local counsel opinion (in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;) in respect of such Mortgage).
(iiid) if reasonably requested by any Controlling Party or Prior to the Investment Grade Date, promptly grant to the Collateral Agent, within sixty 60 days (60subject to extension in the sole discretion of the Collateral Agent) days after such request (of the acquisition of a Pipeline or such longer period Commercial Operation Date of a Pipeline, as the Controlling Parties (orapplicable, if acquired or constructed by a Loan Party after the Sell-Down Date but prior Effective Date, a security interest in such Pipeline (to be perfected by a transmitting utility UCC financing statement) and a Mortgage on (i) the Pipeline together with all real property that is part of such Pipeline system and that is owned in fee by such Loan Party and (ii) at least 80% of the Pipeline ROWs for such Pipeline (calculated based upon the length of such Pipeline) in each case, as additional security for the Secured Obligations. 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 Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral and Guarantee Requirement with respect Agent shall reasonably require to confirm the validity, perfection and existence priority of security interests with respect to property the Lien of any Guarantor existing Mortgage or new Mortgage against such after-acquired after the Closing Date Pipeline (including a local counsel opinion (in form and subject substance reasonably satisfactory to the Administrative Agent and the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (iAgent) or (iiin respect of such Mortgage).
(be) requiring each Domestic Subsidiary Prior to the Investment Grade Date, promptly grant to the Collateral Agent, within 60 days (subject to extension in the sole discretion of the Collateral Agent), a security interest in and Mortgage lien on (i) any Building or Manufactured (Mobile) Home on any Mortgaged Property that individually has a replacement value of at least $10.0 million, as additional security for the Secured Obligations. Such Mortgage shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent. The Mortgage 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 designated as a “Material Domestic Subsidiary” granted pursuant to the proviso Mortgage 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 Building or Manufactured (Mobile) Home (including (i) a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent), (ii) a Life of Loan flood hazard determination with respect to the parcel of real property on which such Building or Manufactured (Mobile) Home is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by Borrower and each Loan Party related thereto) and (iii) in the definition event such Building or Manufactured (Mobile) Home is located in an area identified by the Federal Emergency Management Agency (or successor agency) as a Special Flood Hazard Area with respect to where flood insurance has been made available under the National Flood Insurance Act of “Material Domestic Subsidiary” 1968 (as now or hereinafter in effect or successor act thereto) evidence of flood insurance in form and substance reasonably acceptable to have taken the Administrative Agent and Collateral Agent) in respect of such Mortgage.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Security Documents, any Loan Document or any other document executed in connection herewith, on or after Investment Grade Date, all actions to comply Collateral and the Security Documents shall be released automatically and terminated without any further action. In connection with the provisions foregoing, the Collateral Agent shall, at Borrower’s expense, promptly execute and file in the appropriate location and deliver to Borrower and each such Guarantor or Guarantor’s designee such termination and full or partial release statements or confirmation thereof, as applicable, and do such other things as are necessary to release the liens to be released pursuant hereto promptly upon the effectiveness of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiaryany such release.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.12, with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral and Guarantee RequirementSecurity Documents but is not so subject, within 15 Business Days following the Intercreditor Agreements and any applicable limitation end of the Fiscal Quarter in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or which such acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
occurs (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Requirements of Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. The Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents on such after-acquired properties.
(b) With respect to any and all certificates representing Equity Interests person that is or becomes a Subsidiary after the Original Closing Date, within 15 Business Days following the end of the Fiscal Quarter in which such person becomes a Subsidiary (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by 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; and
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 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 Guarantor and a joinder agreement to the applicable 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, (B) to execute a Business Associate Agreement and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; provided that any Controlling Subsidiary of the Borrower will not be required to become a Guarantor and will not be required 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 grant to the Collateral Agent, within sixty 15 Business Days of the end of the Fiscal Quarter in which the acquisition thereof occurred, a security interest in and Mortgage on (60i) days after each Real Property owned in fee by such request (or Loan Party as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Original Closing Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $10.0 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 $10.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge extent permitted by 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 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in Lawtitle insurance policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (each in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after in respect of such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiMortgage).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any Property now owned or acquired after the Parent Issuer’s expense, Closing Date by the Borrowers or any other Loan Party that is intended to be or become Collateral subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 30 days after the acquisition 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Administrative Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral Agent. Each Borrower shall otherwise take such actions and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties 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) promptly (and all certificates representing Equity Interests in any event within 30 days after such Person becomes a Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided, that with respect to any first-tier Foreign Subsidiary of Holdings or any of its Subsidiaries 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 pledge would have a material adverse tax impact on Holdings or any of its Subsidiaries (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; and
blank by a duly authorized officer of such Subsidiary's parent, as the case may be, and (Cii) take and cause such new Subsidiary (other than any Foreign Subsidiary if such pledge would have a material adverse tax impact on Holdings or any of its Subsidiaries (determined at the reasonable discretion of the Administrative Agent) (A) to execute a Joinder Agreement or such comparable documentation and a joinder agreement to the parent of such Subsidiary that Security Agreement in the form annexed thereto which is a Guarantorin form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty . If any such new Subsidiary is engaged in the business of coal production or coal sales (60) days after such request (other than the sale of coal for export or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretionhome use), deliver to such Joinder Agreement shall provide, among other things, for the Collateral Agent customary legal opinionsjoinder of such new Subsidiary as an additional Borrower and, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change , as an additional Mining Company, Land Company or Sales Company and shall otherwise be in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably substance satisfactory to the Controlling PartiesAdministrative Agent.
(c) as If at any time any one or more Wholly-Owned Subsidiaries in the aggregate (other than any Foreign Subsidiary of Holdings or any of its Subsidiaries that is not a "first-tier" Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10.0 million, then the Borrowers shall, and shall cause one or more of such matters Subsidiaries to, comply with Section 5.11(b) within the time frames set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative such subsection so that no one or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after more such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso Subsidiaries in the definition aggregate hold assets having either a book value or fair market value in excess of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary$10.0 million .”
Appears in 1 contract
Samples: Credit Agreement (Massey Energy Co)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon The Loans shall be, at all times, secured by a second priority Lien on and security interest in all collateral securing the Revolving Facility (v) in the formation or acquisition case of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each casetermination thereof, other than an Excluded Subsidiary) by any Note Party, (w) an election by all collateral securing the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but Revolving Facility immediately prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iitermination).
(b) requiring The Borrower shall promptly cause each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” guarantee the Indebtedness pursuant to the proviso Guaranty Agreement. In connection with any such guaranty, the Borrower shall, or shall cause such Domestic Subsidiary to (A) execute and deliver a supplement to the Guaranty Agreement executed by such Subsidiary, (B) pledge all of the Equity Interests of such new Subsidiary (including, without limitation, delivery (if applicable) to the Revolving Agent (or to the Administrative Agent, if the Revolving Facility shall have terminated) of original certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required blank by the definition registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) In the event that the Borrower or any Domestic Subsidiary becomes the owner of “Material a Foreign Subsidiary, then the Borrower shall promptly cause such Domestic Subsidiary to guarantee the Indebtedness pursuant to the Guaranty Agreement. In connection with any such guaranty, the Borrower shall, or shall cause such Domestic Subsidiary to, (1) execute and deliver a supplement to the Guaranty Agreement, (2) pledge 65% of all the Equity Interests of such Foreign Subsidiary (including, without limitation, delivery to the Revolving Agent (or to the Administrative Agent, if the Revolving Facility shall have terminated) of original stock certificates evidencing such Equity Interests of such Foreign Subsidiary, together with appropriate stock powers for each certificate duly executed in blank by the registered owner thereof) and (3) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.”
Appears in 1 contract
Samples: Senior Term Loan Agreement (McMoran Exploration Co /De/)
Additional Collateral; Additional Guarantors. At (a) With respect to any Specified Personal Property acquired after the Parent Issuer’s expenseClosing Date as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly following such acquisition (i) execute and deliver to the Administrative Agent such amendments or supplements to the Security Agreement or Mortgages or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a Lien in such Property, (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien (or after the Specified Refinancing Effective Date solely with respect to Term Loan Priority Collateral, a perfected second priority Lien) in such Property, subject to Permitted Liens, including without limitation, the limitations filing of UCC financing statements (or equivalent documentation) in such jurisdictions as may be required by the Security Agreement or by Law or as may be requested by the Administrative Agent and exceptions the recording of such amendment or supplement with the United States Coast Guard, if applicable, and (iii) if reasonably 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, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any new Material Subsidiary (other than (i) an Excluded Subsidiary or (ii) a Project Finance Subsidiary) directly or indirectly created or acquired after the Closing Date by the Parent Borrower or any other Loan Parties (which, for the purposes of this Indentureparagraph, shall include (1) any existing Material Subsidiary that ceases to be an Excluded Subsidiary or a Project Finance Subsidiary, (2) any existing Subsidiary (that is not an Excluded Subsidiary or a Project Finance Subsidiary) that ceases to be an Immaterial Subsidiary or otherwise becomes a Material Subsidiary and (3) any Subsidiary that guarantees any Indebtedness of any Borrower or any Guarantor), promptly (and in any event within 30 days or such longer period as the Administrative Agent may agree in its sole discretion) following such creation, acquisition or the guaranteeing of any such Indebtedness, (i) cause such Subsidiary (A) to become a party to the Guaranty and the Security Agreement (or enter into other similar documents in form and substance satisfactory to the Administrative Agent), (B) in the case of any such Subsidiary owning a Specified Barge Rig, to execute and deliver a new Mortgage or an amendment to any existing Mortgage to include as covering such Specified Barge Rig, and (C) to take such actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien (or after the Specified Refinancing Effective Date solely with respect to Term Loan Priority Collateral, a perfected second priority Lien) in the Collateral described in the Security Agreement (or other similar document referred to in (i)(A) above) or the applicable Mortgage (or amendment to an existing Mortgage), as the case may be, with respect to such Subsidiary (subject to Permitted Liens), including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent documentation) in such jurisdictions as may be required pursuant by the Security Agreement (or other similar document referred to the terms of the Notes Documents in (i)(A) above) or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent and the recording of such Mortgage or amendment to a Mortgage with the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (orUnited States Coast Guard, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
and (iiiii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), Administrative Agent deliver to the Collateral Administrative Agent any other items necessary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from time counsel, reasonably satisfactory to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence Administrative Agent.
(c) If, as of security interests with respect to property the end of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee RequirementMeasurement Period, but not specifically covered by the preceding clause Immaterial Subsidiaries collectively (i) generated more than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of the Parent Borrower and its Subsidiaries are available or (ii)) own assets that have an aggregate fair market value equal to or greater than 5.0% of Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries, then in each case the Parent Borrower shall cause one or more of such Immaterial Subsidiaries to execute a joinder agreement (or agreements) such that after giving effect thereto, (A) all such remaining Immaterial Subsidiaries that are not Loan Parties generated less than 5.0% of Consolidated EBITDA for such Measurement Period and (B) the total assets owned by all such remaining Immaterial Subsidiaries that are not Loan Parties will have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject (a) WithSubject to the limitations and exceptions terms of this Indenturethe 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 provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 90 days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designationthereof, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior may be agreed to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeAdministrative Agent in its sole discretion) may agree in writing in their (or itsi) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note for its benefit and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the other Secured Parties pursuant Parties, a Lien on such property subject to Article 3 of the First Lien/Second no Liens other than Permitted Liens and (ii) take all actions necessary to cause such Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to be duly perfected to the extent certificated)required by such Collateral Document in accordance with all applicable requirements of law, intercompany notes including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Company shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the Administrative Agent shall 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 Domestic Subsidiary (including, without limitation, pursuant to an LLC Division) (other than (1) a Domestic Subsidiary of a Foreign Subsidiary that is a CFC or, (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 Date (i) cause such new 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 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 certificatedrequired 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 (ii) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary (and Guarantee Requirementthose held by such Subsidiary in other Subsidiaries to the extent required by the Security Agreement), accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
(Cblank by a duly authorized officer of the holder(s) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (orEquity Interests, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligationsand, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) Security Agreement, all intercompany notes owing from such Subsidiary to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge any Loan Party together with instruments of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”transfer executed
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) With respect to any Specified Personal Property acquired after the Parent Issuer’s expenseClosing Date as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly following such acquisition (i) execute and deliver to the Administrative Agent such amendments or supplements to the Security Agreement, Lux Security Agreements or Mortgages or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a Lien in such Property, (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien in such Property, subject to Permitted Liens, including without limitation, the limitations filing of UCC financing statements (or equivalent documentation) in such jurisdictions as may be required by the Security Agreement, any Lux Security Agreement or by Law or as may be requested by the Administrative Agent and exceptions the recording of such amendment or supplement with the United States Coast Guard, if applicable, and (iii) if reasonably 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, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any new Material Subsidiary (other than (i) an Excluded Subsidiary or (ii) a Project Finance Subsidiary) directly or indirectly created or acquired after the Closing Date by the Parent Borrower or any other Loan Parties (which, for the purposes of this Indentureparagraph, shall include (1) any existing Material Subsidiary that ceases to be an Excluded Subsidiary or a Project Finance Subsidiary, (2) any existing Subsidiary (that is not an Excluded Subsidiary or a Project Finance Subsidiary) that ceases to be an Immaterial Subsidiary or otherwise becomes a Material Subsidiary and (3) any Subsidiary that guarantees any Indebtedness of the Borrower or any Guarantor), promptly (and in any event within 30 days or such longer period as the Administrative Agent may agree in its sole discretion) following such creation, acquisition or the guaranteeing of any such Indebtedness, (i) cause such Subsidiary (A) to become a party to the Guaranty and the Security Agreement (or enter into other similar documents in form and substance satisfactory to the Administrative Agent), (B) in the case of any such Subsidiary owning a Specified Barge Rig, to execute and deliver a new Mortgage or an amendment to any existing Mortgage to include as covering such Specified Barge Rig, and (C) to take such actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien in the Collateral described in the Security Agreement (or other similar document referred to in (i)(A) above) or the applicable Mortgage (or amendment to an existing Mortgage), as the case may be, with respect to such Subsidiary (subject to Permitted Liens), including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent documentation) in such jurisdictions as may be required pursuant by the Security Agreement (or other similar document referred to the terms of the Notes Documents in (i)(A) above) or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent and the recording of such Mortgage or amendment to a Mortgage with the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (orUnited States Coast Guard, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
and (iiiii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), Administrative Agent deliver to the Collateral Administrative Agent any other items necessary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from time counsel, reasonably satisfactory to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence Administrative Agent.
(c) If, as of security interests with respect to property the end of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee RequirementMeasurement Period, but not specifically covered by the preceding clause Immaterial Subsidiaries collectively (i) generated more than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of the Parent Borrower and its Subsidiaries are available or (ii)) own assets that have an aggregate fair market value equal to or greater than 5.0% of Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries, then in each case the Parent Borrower shall cause one or more of such Immaterial Subsidiaries to execute a joinder agreement (or agreements) such that after giving effect thereto, (A) all such remaining Immaterial Subsidiaries that are not Loan Parties generated less than 5.0% of Consolidated EBITDA for such Measurement Period and (B) the total assets owned by all such remaining Immaterial Subsidiaries that are not Loan Parties will have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At Subject to this Section 5.10, with respect to (x) any property acquired after the Parent Issuer’s expense, subject to the limitations Closing Date (other than Excluded Collateral) by any Borrower or any Subsidiary Guarantor and exceptions of this Indenture, including, without limitation, the provisions (y) any property constituting Equity Interests of the Collateral and Guarantee Requirement, the Intercreditor Agreements and Administrative Borrower or any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested intercompany Indebtedness owed to Holdings by any Controlling Party (orof the Restricted Parties, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) that is intended to be subject to the Lien created by any Note Partyof the Security Documents but is not so subject, promptly (w) an election and in any event within 30 days after the acquisition thereof (as such date may be extended by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (xAdministrative Agent in its sole discretion)) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant 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, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note for its benefit and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the other Secured Parties pursuant Parties, a Lien on such property subject to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)no Liens other than Permitted Liens, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent, deliver opinions of counsel to the Loan Parties in form and substance, and from counsel, reasonably acceptable to the Administrative Agent, and (iii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements and intellectual property security agreements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; provided, within sixty however, that neither any Borrower nor any Subsidiary Guarantor shall be required to record any grant of security interest in Collateral consisting of Intellectual Property (60x) days after arising, protected or otherwise existing in any jurisdiction outside of the United States or (y) that is not material Intellectual Property. The Borrowers and the other Loan Parties shall otherwise take such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), actions and execute and/or deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) documents as the Controlling Party, the Designated First Lien Representative Administrative Agent or the Collateral AgentAgent shall reasonably require to confirm the validity, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence priority of security interests with respect to property the Lien of any Guarantor the Security Documents against such after-acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)properties.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At the Parent Issuer’s Borrowers’ expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action either necessary or as reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon Upon (vi)(x) the formation or acquisition of any new direct or indirect wholly-wholly owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Partythe Lead Borrower (including, (w) an election by without limitation, upon the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 formation of any existing direct or indirect wholly-owned Material Domestic Subsidiary as that is a Restricted Subsidiary (in each case, other than Delaware Divided LLC and is not otherwise an Excluded Subsidiary), (y) any Excluded Subsidiary becoming a wholly-ceasing to constitute an Excluded Subsidiary or (z) the designation in accordance with Section 6.14 of an existing direct or indirect wholly owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) as a Restricted Subsidiary or (zii) the acquisition of any Restricted Subsidiary ceasing property by any Loan Party, which property is contemplated under the Collateral and Guarantee Requirement but is not automatically subject to be an a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Party under the then existing Collateral Documents ((x) other than Excluded Subsidiary:Assets and (y) in the case of any Loan Party organized outside of the United States, subject to the Agreed Security Principles):
(i) within 60 sixty (or such greater number of days specified below60) days after such formation, acquisition acquisition, cessation or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their (or its) reasonable its discretion, notify the Administrative Agent thereof and:
(A) cause each such Subsidiary or Loan Party to duly execute and deliver to the Trustee and Administrative Agent or the Collateral AgentAgent (as appropriate) joinders to this Agreement as Guarantors, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, Mortgages, a counterpart of the Intercompany Note 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 4849-7283-2717 180 Requirement”), as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties Administrative Agent (or, if after the Sell-Down Date but prior consistent to the Discharge of First Lien Secured Obligationsextent applicable, the Designated First Lien Representative) (consistent with the the, Security Agreement, Intellectual Property Security Agreements Agreement and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee RequirementRequirement 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 to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), ) and intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, that are required to be pledged pursuant to the Collateral and Guarantee RequirementRequirement and the Agreed Security Principles, as applicable, accompanied by (if relevant in the applicable jurisdiction), accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and;
(C) take and cause such Subsidiary (and the each direct or indirect parent of such Subsidiary that is a Guarantor) or other Loan Party, as applicable, to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements or any comparable filing under any applicable jurisdiction and Intellectual Property Security Agreements, and delivery of stock and membership interest certificates to the extent certificatedcertificates) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee RequirementRequirement 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 requested available and in the possession of the Loan Parties or their respective Subsidiaries; provided, however, that there shall be no obligation to deliver such to the Designated First Lien Representative under Administrative Agent any existing environmental assessment report or appraisal whose disclosure to the First Lien Financing Documents orAdministrative Agent would require the consent of a Person other than the Loan Parties or one of their respective Subsidiaries, after where, despite the Discharge commercially reasonable efforts of First Lien Secured Obligations the Loan Parties or their respective Subsidiaries to obtain such consent, such consent cannot be obtained; and
(iii) if reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable its discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee RequirementRequirement and the Agreed Security Principles, as applicable, but not specifically covered by the preceding clause clauses (i) or (ii)) or clause (b) below.
(bi) requiring each Domestic Subsidiary 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 4849-7283-2717 181 Property as determined by the Lead Borrower (acting reasonably and in good faith) that is required to be designated provided as a “Material Domestic Subsidiary” Collateral pursuant to the proviso Collateral and Guarantee Requirement, cause such property to be subject to a Lien and Mortgage in favor of the definition Collateral Agent for the benefit of “Material Domestic Subsidiary” the Secured Parties and take, or cause the relevant Loan Party to have taken all take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, in each case to the extent required by, and subject to the limitations and exceptions of, the Collateral and Guarantee Requirement and to otherwise comply with the provisions requirements of this Section 3.13 within the time frame required Collateral and Guarantee Requirement; and (ii) as promptly as practicable after the request therefor by the definition Administrative Agent or Collateral Agent, deliver to the Collateral Agent with respect to each such acquired Material Real Property, any existing title reports, abstracts, surveys, appraisals or environmental assessment reports, to the extent available and in the possession of “Material Domestic Subsidiarythe 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 consent, such consent cannot be obtained.”
Appears in 1 contract
Samples: Credit Agreement (Bumble Inc.)
Additional Collateral; Additional Guarantors. At (a) With respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 90 days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designationthereof, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior may be agreed to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeAdministrative Agent in its sole discretion) may agree in writing in their (or itsi) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the 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 and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with respect to any Excluded Assetsall applicable requirements of law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Company shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the Administrative Agent shall 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 Domestic Subsidiary (other than (1) a Domestic Subsidiary of a Foreign Subsidiary that is a CFC or (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) that is a Material Subsidiary after the Closing Date (i) cause such new 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 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.
(c) With respect to any Person that becomes a Specified Pledgor or any Controlling Party Specified Pledgor that acquires Equity Interest of a first tier Foreign Subsidiary, within 90 days (or, x) if after the Sell-Down Date but prior such Specified Pledgor is not party to the Discharge Pledge Agreement, cause such Specified Pledgor to execute a joinder agreement 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 First Lien Secured Obligationsdoubt 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 Designated First Lien Representative) Company will grant and cause each of the other Borrowers and the Guarantors to grant to the Administrative Agent security interests in, and Mortgages on, any Real Property of such Loan Parties that the Company designates to be included in the Borrowing Base pursuant to documentation in form and substance reasonably satisfactory to the Controlling Parties (orAdministrative Agent and the Company, if after the Sell-Down Date but prior which security interest and Mortgage shall constitute valid and enforceable Liens subject to the Discharge of First Lien Secured Obligationsno other Liens except Permitted Liens and record, the Designated First Lien Representative) (consistent with the Security Agreementregister or file, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (to record, register or file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the parent Liens in favor of each such Subsidiary that is a Guarantor) to deliver to the Collateral Administrative Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor AgreementParties) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged granted pursuant to the Collateral Mortgages and Guarantee Requirementpay, accompanied and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges required to be paid in 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 waived by undated stock powers the Administrative Agent or other appropriate instruments of transfer executed in blank; andthe 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:
(Ci) take the Administrative Agent shall have received:
(A) (i) counterparts of each Mortgage to be entered into with respect to each such Real Property duly executed and cause such Subsidiary (and delivered by the parent record owner of such Subsidiary Real Property and suitable for recording, registering or filing (together with any other forms or undertakings that is 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 Guarantorvalid and enforceable Lien subject to no other Liens except Permitted Liens, at the time of filing, registration or recordation thereof and (ii) to take whatever action (including the filing such counterparts of UCC financing statements each Mortgage shall have been deemed released and delivery of stock and membership interest certificates delivered to the extent certificated) as may be required Administrative Agent pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party this Agreement; and
(or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeB) to vest in the Collateral Agent (or in any representative all of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;Related Real Property Documents for such Real Property; and
(ii) to confirmation from the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Administrative Agent customary legal opinions, board resolutions, good standing certificates that all flood insurance due diligence and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement flood insurance compliance with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)such Real Property has been completed.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, event within 30 days after the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party acquisition thereof (or, if after with respect to intellectual property, in any event on a quarterly basis) (or, in each case, such later date as the Sell-Down Date but prior Administrative Agent may agree)) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) 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 request to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues 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 actions reasonably necessary or advisable to cause such Lien to be satisfiedduly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including:including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrower 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 the Collateral Documents on such after-acquired properties to the extent required by the Collateral Documents.
(ab) upon (v) the formation With respect to any Person that is or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate becomes a Restricted Subsidiary as directly owned by a Guarantor pursuant to Loan Party after the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct Closing Date or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) if any Restricted Subsidiary ceasing that was an Excluded Subsidiary ceases to be an Excluded Subsidiary:
, promptly (and in any event within 30 days after the date such Person becomes a Restricted 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) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Restricted Subsidiary owned by such Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder (Cor holders) take of such Equity Interests, and cause all written intercompany notes, if any, representing Indebtedness owing from such Subsidiary (to any Loan Party together with instruments of transfer executed and the parent 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 Restricted Subsidiary that is (A) to execute a Guarantorjoinder 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, and (B) to take whatever action all other actions 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 UCC financing statements and delivery of stock and membership interest certificates to in such jurisdictions within the extent certificated) United States as may be required pursuant to reasonably requested by the terms of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent Agent. Notwithstanding the foregoing, (or in any representative 1) compliance with clause (i) of the Collateral Agent designated by itthis Section 6.11(b) valid and perfected second priority Liens (shall be required only to the extent required by the Collateral Documentsterms of the Security Agreement, (2) no Excluded Subsidiary shall be required to become a Subsidiary Guarantor or otherwise take the extent required by the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 6.11(b) and (3) no more than 65% of the total voting power of all outstanding voting stock and 100% of the Equity Interests not constituting voting stock of any CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the extent requested 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 deliver such be pledged.
(c) Each Loan Party shall grant to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) 90 days after such request of the acquisition thereof (or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretionagree), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates a security interest in and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, mortgage in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Administrative Agent and Collateral Agent any other items necessary from time to time to satisfy (a “Mortgage”) on each parcel of Real Property located in the Collateral United States and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor 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 $25 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the Collateral and Guarantee Requirementextent permitted hereunder). In addition, but the Borrower agrees that, if the Alabama Property is not specifically covered sold by December 31, 2014, the preceding clause Borrower will cause a
(i) a completed flood hazard determination from a third party vendor, and (x) a notification to the applicable Loan Parties that flood insurance coverage is not available under the National Flood Insurance Program; or (y) if required by relevant requirements of Law, evidence of required flood insurance.
(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 Agent and the Borrower, the cost of creating or perfecting such pledges or security interests 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 Security 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, 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 Borrower, 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.
(be) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to Notwithstanding the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the foregoing provisions of this Section 3.13 within 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time frame required by to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the definition Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and the Borrower. Notwithstanding the foregoing provisions of “Material Domestic Subsidiarythis Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Borrower that Guarantees the Senior Notes or the 2025 Senior Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.”
Appears in 1 contract
Samples: Credit Agreement (Time Inc.)
Additional Collateral; Additional Guarantors. At the Parent Issuer’s expense, subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each caseSubject to this Section 5.11, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party Security Documents but is not so subject (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date)but, in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such any event, excluding any Equity Interest of a Foreign Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 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 Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and Guarantee Requirementfor the benefit of the other Secured Parties, accompanied a Lien on such property subject to no Liens other than Permitted 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 (iii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Borrower 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 the Security Documents against such after-acquired properties.
(b) With respect to any person that is or becomes (A) a guarantor of (or otherwise provides, direct or indirect, credit support in respect of) the payment and/or performance of all or any portion of the obligations under or in respect of any or all the Senior Note Documents (a “Note Guarantor”) or (B) a Restricted Subsidiary of a Loan Party after the Closing Date, (y) on the Closing Date or, as applicable, within 3 Business Days after such person becomes a Note Guarantor or (z) on the Closing Date or, as applicable, within 30 days after such person becomes a Restricted Subsidiary, to (i) deliver to the Collateral Agent (or its designated bailee or agent) the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (Cii) take and if subsequent to the Closing Date, cause such new Restricted Subsidiary (A) to execute a Joinder Agreement to become a Subsidiary Guarantor and a Pledgor or, in the parent case of a Foreign Subsidiary, execute a security document compatible with the laws of such Subsidiary that is a GuarantorForeign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (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 Document to be duly perfected to the extent required by such Security Document in accordance with all applicable Legal Requirements, including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent restrictions) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (i) no Foreign Subsidiary shall be required to take the actions specified herein if 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 a material increase in the net income of a United States shareholder of such Subsidiary pursuant to the terms Section 951 (or a successor provision) of the Notes Documents or Code, as may reasonably determined by Borrower and (ii) no Loan Party shall be necessary required to deliver any Equity Interests in any Foreign Subsidiary under clause (i) of the reasonable opinion preceding sentence, except for (A) Voting Stock of any Controlling Subsidiary which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing no more than 66% 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. 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 5.11(b).
(c) With respect to any person that is or becomes a Restricted Subsidiary of a Loan Party (or, if after the Sell-Down Date but prior Closing Date, promptly (and in any event within 30 days after such person becomes a Subsidiary) execute and deliver to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or its designated bailee or agent) (i) a counterpart to the Intercompany Note, (ii) a Joinder Agreement (as defined in any representative of the Collateral Management Agreement) to the Collateral Management Agreement and (iii) 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 designated (and in any event within 45 days of the acquisition thereof) a security interest in and Mortgage on each Real Property owned in fee by it) valid such Loan Party as is acquired by such Loan Party after the Closing Date and perfected second priority Liens that, together with any improvements thereon, individually has a Fair Market Value of at least $2,500,000, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent required 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 Documents) Agent and shall constitute valid and enforceable perfected first priority Liens subject only to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Permitted Liens. Such Loan Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), shall promptly deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in any event within 30 days) a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative Landlord Access Agreement or the Collateral AgentBailee Letter, as applicable, may reasonably request;
with respect to each leased Real Property constituting a Key Location (iii) if reasonably requested unless the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Landlord Access Agreements or Bailee Letter, as applicable). The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by any Controlling Party or applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Agent required to be granted pursuant to the Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent any other items necessary from time to time to satisfy such documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, enforceability, perfection and Guarantee Requirement 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 perfection such after-acquired Real Property and existence of security interests execute and/or delivery to the Collateral Agent such insurance certificates and other documentation (including with respect to property of any Guarantor acquired after the Closing Date title and subject flood insurance), in each case in form and substance reasonably satisfactory to the Administrative Agent and Collateral and Guarantee RequirementAgent, but not specifically covered by as the preceding clause (i) or (ii)Collateral Agent shall reasonably request.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any Property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral and Guarantee RequirementSecurity Documents but is not so subject (but, the Intercreditor Agreements and any applicable limitation in any Collateral Documentevent, excluding any Equity Interest of a Foreign Subsidiary not required to be pledged pursuant to the Parent Issuer shalllast sentence of Section 5.11(b)), promptly (and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by in any Controlling Party (or, if event within 20 Business Days after the Sell-Down Date but prior acquisition thereof as may be extended with the consent of the Administrative Agent in its sole discretion) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues for the benefit of the other Secured Parties, a Lien on such Property subject to no Liens other than Permitted Collateral Liens and (ii) take all actions necessary to cause such Lien to be satisfiedduly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including:including the filing of financing statements (including fixture filings and transmitting utility filings, as applicable) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Borrower and the other Loan Parties 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 the Security Documents against such after-acquired properties.
(ab) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer With respect to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct Person that is or indirect wholly-owned Material becomes a Wholly Owned Domestic Subsidiary as of a Restricted Subsidiary Loan Party after the Closing Date (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (zy) any Restricted Wholly Owned Domestic Subsidiary ceasing of Borrower that is an Excluded Subsidiary that ceases to be an Excluded Subsidiary:
Subsidiary (whether pursuant to the definition thereof, the definition of Immaterial Subsidiary or otherwise), promptly (and in any event within 20 Business Days after such Person becomes a Subsidiary as may be extended with the consent of the Administrative Agent in its sole discretion) (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior except to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to extent any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents following constitutes Property that is excluded as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with under the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Subsidiary owned by a Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement to become a Guarantor and a Pledgor or, in the case of a Foreign Subsidiary, if reasonably requested by the Administrative Agent or the Collateral Agent, execute a security document compatible with the laws of such Foreign Subsidiary’s jurisdiction (and in form and substance reasonably satisfactory to the Collateral Agent) to cause such Subsidiary to become a Guarantor and a Pledgor, (B) deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Document to be duly perfected second priority Liens (to the extent required by such Security Document in accordance with all applicable Legal Requirements, including the Collateral Documentsfiling of financing statements (including fixture filings and transmitting utility filings, as applicable) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver or equivalent registrations in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent.
(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 sixty (60) days 20 Business Days after such request (or such longer period Person becomes a Subsidiary as may be extended with the Controlling Parties (or, if after consent of the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeAdministrative Agent in its sole discretion) may agree in writing in their reasonable discretion), execute and deliver to the Collateral Agent customary legal opinions(i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, board resolutionsan endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, good standing certificates endorsed by such Subsidiary.
(d) (A) Promptly grant to the Collateral Agent (and secretary’s or assistant secretary’s certificates consistent in any event within 20 Business Days of the acquisition thereof as may be extended with those delivered the consent of the Administrative Agent in its sole discretion) a security interest in and Mortgage on (i) each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date under Section 3.1(aand that, together with any improvements thereon, individually has a Fair Market Value of at least $1,000,000 and (ii) each leased Real Property of such Loan Party of a “company-controlled” data center (unless the Note Purchase Agreement Collateral Agent otherwise consents or the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Mortgage), in each case, as additional security for the Secured Obligations (conformed as appropriate) other than changes unless the subject Property is already mortgaged to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior third party to the Sell-Down Date, in a form extent permitted by Section 6.02(i)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Agent and shall constitute valid and enforceable perfected first priority Liens subject only to Permitted Collateral Liens. Such Loan Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), shall promptly deliver to the Collateral Agent (and in any other items necessary from time to time to satisfy event within 20 Business Days as may be extended with the Collateral and Guarantee Requirement consent of the Administrative Agent in its sole discretion) a Landlord Access Agreement with respect to each Data Center Lease (unless the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Landlord 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 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 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, enforceability, perfection and existence priority of security interests the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including, but not limited to, a Title Policy, a Survey and environmental assessments (only with respect to property such Real Property owned in fee by such Loan Party) and local counsel opinion in respect of any Guarantor acquired after the Closing Date such Mortgage, in each case, in form and subject substance reasonably satisfactory to the Administrative Agent and the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiAgent).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired on or after the Parent Issuer’s expense, Closing Date by any Borrower or any other Loan Party that is intended to be subject to the limitations and exceptions Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any property described in paragraph (b) of this Indenturesubsection) promptly (and in any event within 30 days after the acquisition thereof and within 60 days in the case of any Real Property described in Section 5.11(d)): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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 Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including, without limitation, the provisions filing of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation financing statements in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to such jurisdictions as may be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrowers shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents against such after-acquired properties or assets.
(b) With respect to any person that is or becomes a Wholly Owned Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party) promptly (and all certificates representing Equity Interests in any event within 30 days after such person becomes a Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing the Equity Interests of such Subsidiary (provided that with respect to any Foreign Subsidiary of Borrower, 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), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
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 together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary, and (Cii) take and cause such new Subsidiary (other than any Non-Guarantor Subsidiary or any Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation and a joinder agreement to the parent of such Subsidiary that is a GuarantorSecurity Agreement, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including, without limitation, the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent, within sixty .
(60c) days after such request If at any time any two or more Wholly Owned Subsidiaries in the aggregate (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes any Foreign Subsidiary of any Borrower that is not a "first-tier" Foreign Subsidiary) not otherwise subject to Section 5.11(b) have assets having either a book value or fair market value in excess of $10,000,000, then the relevant Borrower shall, and shall cause one or more of such legal opinions resulting from a change in LawSubsidiaries to, change in fact or change to counsel’s form of opinion (and prior to comply with Section 5.11(b) within the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters time frames set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative such subsection so that no two or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party more such Subsidiaries hold assets having either a book value or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge fair market value in excess of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii)$10,000,000.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, event within 30 days after the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party acquisition thereof (or, if after with respect to intellectual property, in any event on a quarterly basis) (or, in each case, such later date as the Sell-Down Date but prior Administrative Agent may agree)) (i) execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) 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 request to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues 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 actions reasonably necessary or advisable to cause such Lien to be satisfiedduly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including:including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrower 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 the Collateral Documents on such after-acquired properties to the extent required by the Collateral Documents.
(ab) upon (v) the formation With respect to any Person that is or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate becomes a Restricted Subsidiary as directly owned by a Guarantor pursuant to Loan Party after the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct Closing Date or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) if any Restricted Subsidiary ceasing that was an Excluded Subsidiary ceases to be an Excluded Subsidiary:
, promptly (and in any event within 30 days after the date such Person becomes a Restricted 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) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Restricted Subsidiary owned by such Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder (Cor holders) take of such Equity Interests, and cause all written intercompany notes, if any, representing Indebtedness owing from such Subsidiary (to any Loan Party together with instruments of transfer executed and the parent 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 Restricted Subsidiary that is (A) to execute a Guarantorjoinder 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, and (B) to take whatever action all other actions 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 UCC financing statements and delivery of stock and membership interest certificates to in such jurisdictions within the extent certificated) United States as may be required pursuant to reasonably requested by the terms of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent Agent. Notwithstanding the foregoing, (or in any representative 1) compliance with clause (i) of the Collateral Agent designated by itthis Section 6.11(b) valid and perfected second priority Liens (shall be required only to the extent required by the Collateral Documentsterms of the Security Agreement, (2) no Excluded Subsidiary shall be required to become a Subsidiary Guarantor or otherwise take the extent required by the Collateral and Guarantee Requirement;
actions specified in clause (ii) of this Section 6.11(b) and (3) no more than 65% of the total voting power of all outstanding voting stock and 100% of the Equity Interests not constituting voting stock of any CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the extent requested 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 deliver such be pledged.
(c) Each Loan Party shall grant to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) 90 days after such request of the Closing Date or the acquisition thereof (or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretionagree), deliver to the Collateral Agent customary legal opinionsas applicable, board resolutions, good standing certificates a security interest in and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, mortgage in a form reasonably satisfactory to the Controlling PartiesAdministrative 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 owned by such Loan Party on the Closing Date or 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 $25 million as additional security for the Obligations (unless the subject property is already mortgaged to such matters set forth a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in this Section 3.13(a) as form and substance to the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral AgentAgent 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, as applicableperfect, may reasonably request;
(iii) if reasonably requested by any Controlling Party or preserve and protect the Liens in favor of the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Agent required to be granted pursuant to the Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), 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 Real Property (including, to the extent so required, a Title Policy, a Survey (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 the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date unless the Administrative Agent has provided to the Revolving Credit Lenders (i) if such Mortgaged Property is not located in a “special flood hazard area”, a completed flood hazard determination with respect to such real property from a third-party vendor at least ten (10) days prior to entering into such Mortgage or (ii) if such Mortgage relates to real property located in a “special flood hazard area”, the following documents with respect to such real property at least twenty (20) days prior to entering into such Mortgage: (w) a completed flood hazard determination from a third party vendor, and (x) a notification to the applicable Loan Parties that flood insurance coverage is not available under the National Flood Insurance Program; or (y) if required by relevant requirements of Law, evidence of required flood insurance.
(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 Agent and the Borrower, the cost of creating or perfecting such pledges or security interests 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 Security 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, 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 Borrower, 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 items necessary Loan Document to the contrary, Liens required to be granted from time to time pursuant to satisfy this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject Documents and, to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (ii).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso extent appropriate in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with applicable jurisdiction, as agreed between the Collateral Agent and the Borrower. Notwithstanding the foregoing provisions of this Section 3.13 within 6.11 or anything in this Agreement or any other Loan Document to the time frame required by contrary, any Subsidiary of the definition of “Material Domestic SubsidiaryBorrower that Guarantees the Senior Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.”
Appears in 1 contract
Samples: Credit Agreement (Meredith Corp)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.11 and Section 6.136.14(b), with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral DocumentDocuments but is not so subject, the Parent Issuer shall, shall promptly notify the Administrative Agent of such acquisition and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party within forty-five (45) days after the acquisition thereof (or, if after with respect to intellectual property, on a quarterly basis) (or such later date as the Sell-Down Date but prior Administrative Agent may agree) the applicable Loan Party shall (i)execute and deliver to the Discharge of First Lien Secured Obligations, Administrative Agent and the Designated First Lien Representative) 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 request to ensure that grant to the Collateral Agent, for its benefit and Guarantee Requirement continues 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 actions reasonably necessary or advisable to cause such Lien to be satisfied, including:
(a) upon (v) duly perfected within the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant United States to the definition of “Guarantor”, (x) the designation extent required by such Collateral Document in accordance with Section 3.16 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 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. For the avoidance of doubt, the forty-five (45) day deadline cited above shall not apply to Material Real Property. Rather, with respect to any existing direct Material Real Property acquired after the Closing Date, the relevant Loan Party shall not be required to execute and deliver the relevant Collateral Documents and such other documents as have been reasonably requested by the Administrative Agent or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), the Collateral Agent until (y) at least forty-five days prior written notice has been provided to the Administrative Agent and (z) the Parent has received confirmation from the Administrative Agent that flood insurance due diligence and flood insurance compliance as required by Section 6.07 hereto has been completed. Subject to Section 6.11(c), as soon as practicable thereafter, but in any event within sixty (60) days (or such later date as the Administrative Agent may agree) of satisfaction of these requirements with respect to such Material Real Property, the relevant Loan Party shall execute and deliver to the Administrative Agent the relevant Collateral Documents and such other documents as have been reasonably requested by the Administrative Agent or the Collateral Agent.
(b) With respect to any Person that is or becomes a Subsidiary becoming a wholly-owned Material Domestic Subsidiary of Parent after the Closing Date (in each case, other than an any Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing ceases to be an Excluded Subsidiary:
, promptly (iand in any event within forty-five (45) within 60 days (or, in the case of clause (ii)(B) below, ninety (90) days) after (I) the date such Person becomes a 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 greater number of days specified below) days after such formation, acquisition or designation, or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Dateagree)), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver i)deliver to the Collateral Agent (orthe certificates, prior to the Discharge of First Lien Secured Obligationsif any, the Designated First Lien Representative as gratuitous bailee for the benefit representing all of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated)of such Subsidiary owned by such Loan Party, intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder (Cor holders) take of such Equity Interests, and cause 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) to the extent required to be so delivered under the Security Agreement, 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 which such perfection is required under the terms of the Security Agreement in favor of the Collateral Agent on behalf of the Secured Parties and (ii)cause any such Subsidiary (A)to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, (B)to deliver Mortgages of Material Real Property owned by such Subsidiary (and otherwise comply with the parent of such Subsidiary that is a Guarantor) requirements set forth in Section 6.11(c)), and (C)to take all other actions reasonably requested by the Administrative Agent or the Collateral Agent to take whatever action cause the Lien created by the applicable Collateral Documents (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms of the Notes Documents or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien RepresentativeSecurity Agreement) to vest in be duly perfected within the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (United States to the extent required by such agreement in accordance with all applicable Law, including the Collateral Documents) to recording of Mortgages and filing of financing statements in such jurisdictions within the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1)no Excluded Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b), (2)no more than (A) 65% of the total voting power of all outstanding voting stock and (B) 100% of the Equity Interests not constituting voting stock of any Controlling 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, (3) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged, and (4) no Lien or similar interest shall be required to be granted, directly or indirectly, in the assets of any CFC or Foreign Subsidiary or any “Excluded Assets” (as such term is defined in the Security Agreement) (including, for the avoidance of doubt Securitization Assets sold, contributed or otherwise transferred in connection with a Permitted Securitization Financing).
(c) Each Loan Party or shall grant to the Collateral Agent, within sixty ninety (6090) days after such request of the acquisition thereof (or such longer period later date as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent may agree in writing in their reasonable discretionagree), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates a security interest in and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, mortgage in a form reasonably satisfactory to the Controlling PartiesAdministrative Agent and Collateral Agent (a “Mortgage”) on any Material Real Property as additional security for the Obligations (unless the subject property is already mortgaged to such matters set forth a third party to the extent permitted hereunder and a junior lien mortgage is not permitted thereby)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in this Section 3.13(a) as form and substance to the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral AgentAgent 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, as applicableperfect, may reasonably request;
(iii) if reasonably requested by any Controlling Party or preserve and protect the Liens in favor of the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Agent required to be granted pursuant to the Discharge of First Lien Secured ObligationsMortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), 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, including to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after acquired Real Property (including, to the extent so required, a Title Policy, a 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).
(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 Agent 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 (ii)such asset constitutes an Excluded Asset (as such term is defined in the Security 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) 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 Parent, 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 items necessary Loan Document to the contrary, Liens required to be granted from time to time pursuant to satisfy this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Guarantee RequirementParent. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, but not specifically covered by any Subsidiary of Parent that Guarantees the preceding clause (i) Senior Secured Notes or (ii).
(b) requiring each Domestic Subsidiary the Senior Unsecured Notes shall be required to be designated a Guarantor hereunder for so long as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiaryit Guarantees such Indebtedness.”
Appears in 1 contract
Samples: Credit Agreement (Uniti Group Inc.)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 6.12, with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral and Guarantee RequirementSecurity Documents but is not so subject, within 15 Business Days following the Intercreditor Agreements and any applicable limitation end of the Fiscal Quarter in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or which such acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
occurs (i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Requirements of Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. The Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents on such after-acquired properties.
(b) With respect to any and all certificates representing Equity Interests person that is or becomes a Subsidiary after the Closing Date, within 15 Business Days following the end of the Fiscal Quarter in which such person becomes a Subsidiary (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by 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; and
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 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 Guarantor and a joinder agreement to the applicable 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, (B) to execute a Business Associate Agreement and (C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; provided that any Controlling Subsidiary of the Borrower will not be required to become a Guarantor and will not be required 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 grant to the Collateral Agent, within sixty 15 Business Days of the end of the Fiscal Quarter in which the acquisition thereof occurred, a security interest in and Mortgage on (60i) days after each Real Property owned in fee by such request (or Loan Party as is acquired by such longer period as the Controlling Parties (or, if Loan Party after the Sell-Down Closing Date but prior and that, together with any improvements thereon, individually has a fair market value of at least $10.0 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 $10.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the Discharge extent permitted by 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 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 First Lien Secured Obligationsthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, the Designated First Lien Representative) may agree fees and other charges payable in writing connection therewith shall be paid in their reasonable discretion), full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent customary legal opinionssuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, board resolutions, good standing certificates perfection and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) priority of the Note Purchase Agreement Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (conformed as appropriate) other than changes to such legal opinions resulting from including a change in Lawtitle insurance policy, change in fact or change to counsel’s form of a Survey and local counsel opinion (each in form and prior to the Sell-Down Date, in a form substance reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or Administrative Agent and the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after in respect of such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically covered by the preceding clause (i) or (iiMortgage).
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Additional Collateral; Additional Guarantors. At (a) Subject to this Section 5.11, with respect to any property acquired after the Parent Issuer’s expense, Closing Date by any Loan Party that is intended to be subject to the limitations and exceptions of this Indenture, including, without limitation, the provisions Lien created by any of the Collateral Security Documents but is not so subject, promptly (and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if event within 30 days after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representativeacquisition thereof) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall 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, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with respect to any Excluded Assetsall applicable Requirements of Law, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart including the filing of the Intercompany Note and other security agreements and documents financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) Administrative Agent. Borrower shall otherwise take such actions and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to execute and/or deliver to the Collateral Agent (orsuch documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit perfection and priority of the Secured Parties pursuant to Article 3 Lien of the First Lien/Second Lien Intercreditor AgreementSecurity Documents on such after-acquired properties.
(b) With respect to any person that is or becomes a Material Subsidiary after the Closing Date, promptly (and all certificates representing Equity Interests in any event within 30 days after such person becomes a Material Subsidiary) (to the extent certificated), intercompany notes (to the extent certificatedi) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant deliver to the Collateral and Guarantee RequirementAgent the certificates, accompanied by if any, representing all of the Equity Interests of such Material Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank; and
blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Material 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 (Cii) take and cause such new Material Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the parent applicable 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 Subsidiary that is a GuarantorForeign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take whatever action (including all actions necessary or advisable in the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be required pursuant to the terms opinion of the Notes Documents Administrative Agent or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of to cause the Collateral Agent designated Lien created by it) valid and the applicable Security Agreement to be duly perfected second priority Liens (to the extent required by such agreement in accordance with all applicable Requirements of Law, including the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver filing of financing statements in such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if jurisdictions as may be reasonably requested by any Controlling Party the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, within sixty (601) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior Equity Interests required to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver be delivered to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(apursuant to clause (i) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a5.11(b) as the Controlling Party, the Designated First Lien Representative shall not include any Equity Interests of a Foreign Subsidiary created or the Collateral Agent, as applicable, may reasonably request;
(iii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date or any Foreign Subsidiary that becomes a Material Subsidiary on or after the Closing Date and subject (2) no Foreign Subsidiary shall be required to take the Collateral and Guarantee Requirement, but not specifically covered by the preceding actions specified in clause (iii) of this Section 5.11(b), if, in the case of either clause (1) or (ii2).
, doing so would constitute an investment of earnings in United States property under Section 956 (bor a successor provision) requiring each Domestic 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 Material Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to Section 951 (or a successor provision) of the proviso Code, as reasonably determined by the Administrative Agent; provided that this exception shall not apply to (A) Voting Stock of any Material Subsidiary which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the definition Code) representing 66% of the total voting power of all outstanding Voting Stock of such Material Subsidiary and (B) 100% of the Equity Interests not constituting Voting Stock of any such Material Subsidiary, except that any such Equity Interests constituting “Material Domestic Subsidiarystock entitled to vote” to have taken all actions to comply with within the provisions meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary5.11(b).”
Appears in 1 contract
Samples: Credit Agreement (Banta Corp)
Additional Collateral; Additional Guarantors. At (a) With respect to any Specified Personal Property acquired after the Parent Issuer’s expenseClosing Date as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly following such acquisition (i) execute and deliver to the Administrative Agent such amendments or supplements to the Security Agreement, Lux Security Agreements or Mortgages or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a Lien in such Property, (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien (or after the Specified Refinancing Effective Date solely with respect to Term Loan Priority Collateral, a perfected second priority Lien) in such Property, subject to Permitted Liens, including without limitation, the limitations filing of UCC financing statements (or equivalent documentation) in such jurisdictions as may be required by the Security Agreement, any Lux Security Agreement or by Law or as may be requested by the Administrative Agent and exceptions the recording of such amendment or supplement with the United States Coast Guard, if applicable, and (iii) if reasonably 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, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any new Material Subsidiary (other than (i) an Excluded Subsidiary or (ii) a Project Finance Subsidiary) directly or indirectly created or acquired after the Closing Date by the Parent Borrower or any other Loan Parties (which, for the purposes of this Indentureparagraph, shall include (1) any existing Material Subsidiary that ceases to be an Excluded Subsidiary or a Project Finance Subsidiary, (2) any existing Subsidiary (that is not an Excluded Subsidiary or a Project Finance Subsidiary) that ceases to be an Immaterial Subsidiary or otherwise becomes a Material Subsidiary and (3) any Subsidiary that guarantees any Indebtedness of any Borrower or any Guarantor), promptly (and in any event within 30 days or such longer period as the Administrative Agent may agree in its sole discretion) following such creation, acquisition or the guaranteeing of any such Indebtedness, (i) cause such Subsidiary (A) to become a party to the Guaranty and the Security Agreement (or enter into other similar documents in form and substance satisfactory to the Administrative Agent), (B) in the case of any such Subsidiary owning a Specified Barge Rig, to execute and deliver a new Mortgage or an amendment to any existing Mortgage to include as covering such Specified Barge Rig, and (C) to take such actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority Lien (or after the Specified Refinancing Effective Date solely with respect to Term Loan Priority Collateral, a perfected second priority Lien) in the Collateral described in the Security Agreement (or other similar document referred to in (i)(A) above) or the applicable Mortgage (or amendment to an existing Mortgage), as the case may be, with respect to such Subsidiary (subject to Permitted Liens), including, without limitation, the provisions of the Collateral and Guarantee Requirement, the Intercreditor Agreements and any applicable limitation in any Collateral Document, the Parent Issuer shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (v) the formation or acquisition of any new direct or indirect wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Note Party, (w) an election by the Parent Issuer to designate a Restricted Subsidiary as a Guarantor pursuant to the definition of “Guarantor”, (x) the designation in accordance with Section 3.16 of any existing direct or indirect wholly-owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), (y) any Subsidiary becoming a wholly-owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) or (z) any Restricted Subsidiary ceasing to be an Excluded Subsidiary:
(i) within 60 (or such greater number of days specified below) days after such formation, acquisition or designation, or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their (or its) reasonable discretion:
(A) cause each such Subsidiary to duly execute and deliver to the Trustee and Collateral Agent, other than with respect to any Excluded Assets, a Guarantor Supplemental Indenture, completed Security Agreement Supplements, Intellectual Property Security Agreements, a counterpart of the Intercompany Note and other security agreements and documents as reasonably requested by the Collateral Agent or any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) and in form and substance reasonably satisfactory to the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) (consistent with the Security Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver to the Collateral Agent (or, prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative as gratuitous bailee for the benefit of the Secured Parties pursuant to Article 3 of the First Lien/Second Lien Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificated), intercompany notes (to the extent certificated) and instruments evidencing Indebtedness that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C) take and cause such Subsidiary (and the parent of such Subsidiary that is a Guarantor) to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated(or equivalent documentation) in such jurisdictions as may be required pursuant by the Security Agreement (or other similar document referred to the terms of the Notes Documents in (i)(A) above) or by law or as may be necessary in the reasonable opinion of any Controlling Party (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected second priority Liens (to the extent required by the Collateral Documents) to the extent required by the Collateral and Guarantee Requirement;
(ii) to the extent requested to deliver such to the Designated First Lien Representative under the First Lien Financing Documents or, after the Discharge of First Lien Secured Obligations if reasonably requested by any Controlling Party the Administrative Agent and the recording of such Mortgage or amendment to a Mortgage with the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (orUnited States Coast Guard, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), deliver to the Collateral Agent customary legal opinions, board resolutions, good standing certificates and secretary’s or assistant secretary’s certificates consistent with those delivered on the Closing Date under Section 3.1(a) of the Note Purchase Agreement (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion (and prior to the Sell-Down Date, in a form reasonably satisfactory to the Controlling Parties) as to such matters set forth in this Section 3.13(a) as the Controlling Party, the Designated First Lien Representative or the Collateral Agent, as applicable, may reasonably request;
and (iiiii) if reasonably requested by any Controlling Party or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Controlling Parties (or, if after the Sell-Down Date but prior to the Discharge of First Lien Secured Obligations, the Designated First Lien Representative) may agree in writing in their reasonable discretion), Administrative Agent deliver to the Collateral Administrative Agent any other items necessary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from time counsel, reasonably satisfactory to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence Administrative Agent.
(c) If, as of security interests with respect to property the end of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee RequirementMeasurement Period, but not specifically covered by the preceding clause Immaterial Subsidiaries collectively (i) generated more than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of the Parent Borrower and its Subsidiaries are available or (ii)) own assets that have an aggregate fair market value equal to or greater than 5.0% of Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries, then in each case the Parent Borrower shall cause one or more of such Immaterial Subsidiaries to execute a joinder agreement (or agreements) such that after giving effect thereto, (A) all such remaining Immaterial Subsidiaries that are not Loan Parties generated less than 5.0% of Consolidated EBITDA for such Measurement Period and (B) the total assets owned by all such remaining Immaterial Subsidiaries that are not Loan Parties will have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets of the Parent Borrower and its Subsidiaries.
(b) requiring each Domestic Subsidiary required to be designated as a “Material Domestic Subsidiary” pursuant to the proviso in the definition of “Material Domestic Subsidiary” to have taken all actions to comply with the provisions of this Section 3.13 within the time frame required by the definition of “Material Domestic Subsidiary.”
Appears in 1 contract
