Common use of Additional Collateral, etc Clause in Contracts

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (TTM Technologies Inc), Term Loan Credit Agreement (TTM Technologies Inc)

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Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Closing Date or, in the case of inventory or equipment that is part of the Collateral, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agentapplicable Collateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 Business Days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement, the Texas Genco Security Agreement or such other documents Security Documents as the Administrative Collateral Agent or the applicable Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative Agentsuch Collateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative Agentapplicable Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property (Excluded Perfection Assets and, except with the priority required by the Intercreditor Agreementrespect to Pledged Securities, subject to Permitted Liens), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Texas Genco Security Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent and (y) filing and recording or the applicable Collateral Trustee. For the avoidance of intellectual property security agreements with doubt, any Collateral acquired by Texas Genco or its Subsidiaries shall be governed by the United States Patent and Trademark Office Texas Genco Security Agreement and the United States Copyright Office, as applicableTexas Genco Collateral Trust Agreement unless and until the Texas Genco Collateral Trust Agreement is terminated in compliance with Article 10 of the NRG Collateral Trust Agreement. (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by the Borrower or any other Loan Party (including a Person that owns such real property and or which becomes a Loan Party Collateral pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition definition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cExcluded Perfection Assets), shall include promptly (1) and, in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and applicable Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) deliver provide the Secured Parties with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Partyapplicable Collateral Trustee, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or if reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee 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, the Collateral Agent and the applicable Collateral Trustee and (iv) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could, or to determine that the operations on any such real property included in such Collateral is in compliance with Environmental Law except to the extent any non-compliance could not, reasonably be expected to result in a material Environmental Liability. (c) With respect to any new Subsidiary (other than an Unrestricted Subsidiary or an Excluded Subsidiary, except for an Excluded Project Subsidiary the pledge of whose Equity Interests pursuant to the Security Documents would not cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be an Unrestricted Subsidiary, an Excluded Foreign Subsidiary or an Excluded Project Subsidiary and any Equity Interests in an Excluded Project Subsidiary the pledge of which would no longer cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 days following such creation or the date of such acquisition), (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement or the Texas Genco Security Agreement as the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee deems necessary or reasonably advisable to grant to the applicable Collateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the applicable Collateral Trustee the certificates, if any, representing such Equity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary or an Unrestricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement to, among other things, provide Guarantees of the Guaranteed Obligations hereunder, the applicable Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably requested by the Administrative Agent to grant to the applicable Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest (except with respect to Pledged Securities, subject to Permitted Liens) in the Collateral described in the Guarantee and Collateral Agreement, the Texas Genco Security Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office, the execution and delivery by all necessary Persons of Control Agreements and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Texas Genco Security Agreement, the Intellectual Property Security Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee, if reasonably requested, 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, the Collateral Agent and the applicable Collateral Trustee. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries, promptly (whichand, for the purposes of this paragraph (d) shall include in any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary)event, within sixty (60) 25 days after the following such creation or acquisition the date of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement or the Texas Genco Security Agreement as the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee deems necessary or reasonably advisable in order to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of first-tier Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent applicable Collateral Trustee the certificates representing such pledged Capital StockEquity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the applicable Collateral Trustee, desirable to perfect the security interest of such Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and such Collateral Trustee, if reasonably requested, legal opinions (which may be delivered by in-house counsel if admitted in the relevant jurisdiction) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, the Collateral Agent and such Collateral Trustee.

Appears in 2 contracts

Samples: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Company or any Loan Party of its Restricted Subsidiaries (other than (w1) any interest in real property or any Property described in paragraph (b)2) of this Section 6.08, (c) or (d) below, (x3) any property Property subject to a Lien expressly permitted by Section 7.3(g7.03(g), (y4) so long as the ABL Obligations Payment Date has not occurredProperty acquired by an Excluded Domestic Subsidiary, (5) Property acquired by a Foreign Subsidiary, (6) any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby Excluded Asset and (z7) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralCapital Stock in a Foreign Subsidiary or Immaterial Restricted Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or and such other documents (including intellectual property security agreements) as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property Property (to the extent such Property is of a type that would constitute Collateral as described in the Guarantee and Collateral Agreement) and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject, except in the case of the pledge of any Restricted Subsidiary Capital Stock, to Liens permitted by Section 7.03) in such property Property (with to the priority extent required by the Intercreditor Guarantee and Collateral Agreement), including (x) without limitation, the filing of Uniform Commercial Code financing statements and equivalent filings in other jurisdictions and/or intellectual property security agreements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee simple interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by the Company or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Restricted Subsidiaries (other than (i) any such real property owned by an Excluded Domestic Subsidiary, a Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company7.03(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of covering such new Subsidiary that is owned by any Loan Partyreal property, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as if then requested by the Collateral Agent a recent or current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (iii) if requested by the Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. No later than three Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Section 6.08(a), in order to comply with the Flood Laws, the Collateral Agent shall have received the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Company (“Company Notice”) and (if applicable) notification to the Company that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Company’s receipt of the Company Notice (e.g. countersigned Company Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Company Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Company’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent (any of the foregoing being “Evidence of Flood Insurance”). (dc) With respect to any new CFC Holding Company or Restricted Subsidiary (other than a Foreign Subsidiary or an Immaterial Restricted Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Restricted Subsidiary that becomes a CFC Holding Company or ceases to be either a Foreign Subsidiary or Immaterial Restricted Subsidiary), within sixty (60) days after by the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary any of its Restricted Subsidiaries (or such later date as the Administrative Agent shall agree to in its sole discretion) other than by an Excluded Domestic Subsidiary), promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and any of its Restricted Subsidiaries, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Restricted Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary, unless an Excluded Domestic Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest (subject, except in the case of the pledge of any Restricted Subsidiary Capital Stock, to Liens permitted by Section 7.03) in the Collateral described in the Guarantee and Collateral Agreement of such new Restricted Subsidiary to the extent required by the Guarantee and Collateral Agreement, including, without limitation, the filing of Uniform Commercial Code financing statements and equivalent filings in other relevant Loan Partyjurisdictions and intellectual property security agreements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, or by law or as may be requested by the Collateral Agent, and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) With respect to any new Foreign Subsidiary (other than any Immaterial Restricted Subsidiary) created or acquired after the Closing Date by the Company or any Restricted Subsidiary (which, for the purposes of this paragraph, shall include any existing Foreign Subsidiary that ceases to be an Immaterial Restricted Subsidiary) other than any Foreign Subsidiary or Excluded Domestic Subsidiary, promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by the Company or any of its Restricted Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Foreign Subsidiary or CFC Holding Company be required to be so pledged), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Restricted Subsidiary, as the case may be, and take such other action as the Administrative Agent deems may be necessary or reasonably advisable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s , deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (e) Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, no Loan Party shall be required to (i) obtain any control agreements or take any other steps requiring perfection by “control” (except to the extent perfected through the filing of a UCC financing statement or delivery of stock certificates/pledged notes and powers/allonges) or (ii) take any action under the law of any non-United States jurisdiction to create or perfect a security interest thereinin any assets, including any intellectual property registered in any non-United States jurisdiction (and no security agreement or pledge agreements governed under the laws of any non-United States jurisdiction shall be required).

Appears in 2 contracts

Samples: Credit Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Xxxxx permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property having a fair market value (together with improvements as determined at the time of acquisition thereof) of at least $10,000,000 25,000,000 acquired in fee after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other Party, no later than (i) any such real property subject to a Lien expressly permitted 90 days after the acquisition thereof, as may be extended by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction if required by the Collateral Agent, each in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject only to the documents ABL/Term Loan Intercreditor Agreement and instruments required Liens permitted under Section 5.1(k8.02, against such Real Property, (ii) provide the Lenders with a Title Policy and a Survey for each Mortgaged Property, together with such affidavits, certificates, instruments of indemnification, legal opinions, either (a) a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination evidencing that the Existing Credit Agreement Mortgaged Property is not in a flood zone or (including any legal opinions b) evidence of flood insurance as required by the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended and in effect and otherwise comply with the Flood Laws, and such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Guarantor after the Closing Date), promptly, and in any event within thirty (30) 30 days after the of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative First Lien Term Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (w) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor, (x) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (By) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect and (z) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect, (b) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with (subject only to the priority required by the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Collateral Agent and (Cc) to deliver to the Administrative Collateral Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Collateral Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Collateral Agent. (d) With respect to any new CFC Holding Company Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) (but not clauses (ii) or (iii)) of the definition of Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that subject only to Liens permitted under Section 8.02) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required to be so pledged) and 100% of the total outstanding non voting Capital Stock of any such Excluded Foreign Subsidiary and (ii) deliver to the Administrative First Lien Term Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. (e) With respect to any new Non Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Unrestricted Subsidiary, any Excluded Foreign Subsidiary and take any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other action than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and deliver to the Collateral Agent such amendments to this Agreement and the Security Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to Liens permitted under Section 8.02) in the Capital Stock of such Non Guarantor Subsidiary that is owned by any Loan Party and (ii) deliver to the First Lien Term Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), the Borrower may notify the Administrative Agent at any time that the Borrower desires to join an Excluded Foreign Subsidiary as a Subsidiary Guarantor under this Agreement and the other Loan Documents, and, in any such case, cause such Excluded Foreign Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other documentation as the Collateral Agent deems reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Excluded Foreign Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Excluded Foreign Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Excluded Foreign Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document, (i) other than with respect to the penultimate sentence of clause (e) above to the contrary, no actions in any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect any 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), (ii) Administrative Agent shall not accept delivery of any Mortgage from any Loan Party with respect to property located in the United States unless each of the Lenders has received 45 days prior written notice thereof and Administrative Agent has received confirmation from each Lender that such Lender has completed its flood insurance diligence, has received copies of all flood insurance documentation and has confirmed that flood insurance compliance has been completed as required by the Flood Laws or as otherwise reasonably satisfactory to such Lender, and (iii) Administrative Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Administrative Agent has completed its Patriot Act searches, OFAC/PEP searches, flood certification and customary individual background checks for such Subsidiary, the results of which shall be reasonably satisfactory to Administrative Agent; provided, that no Default or Event of Default shall result from any Loan Party’s failure to comply with the terms of this Section 7.08 so long as such Default or Event of Default arose solely from the failure or refusal of the Administrative Agent to accept delivery of the applicable joinder or security interest thereindocumentation under this clause (f).

Appears in 2 contracts

Samples: Abl Credit and Guarantee Agreement (Janus International Group, Inc.), Abl Credit and Guarantee Agreement (Janus International Group, Inc.)

Additional Collateral, etc. (a) With [Reserved]. (b) Subject to Sections 5.10(d) and (e), with respect to any fee interest or absolute right of ownership in any real or immoveable property having a fair market value (together with improvements thereof on the date such property is acquired) of at least $250,000 (as determined in good faith by a Responsible Officer) acquired after the Closing Date by any Loan Party (in each case, other than (w) any property described in paragraph (b), (c) or (d) below, (x) any such real property subject to a Lien expressly any Contractual Obligation that includes negative pledge clauses permitted by Section 7.3(g6.13, any Lien permitted pursuant to Section 6.3(j), (y6.3(p) so long as the ABL Obligations Payment Date has not occurred, or 6.3(s) or any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation Requirement of Law that prohibits or restricts compliance with the Borrower, that the cost terms and conditions of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this Section 5.10) (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agentwhich, for the benefit purposes of this paragraph, shall include any owned real property of any Loan Party that ceases to be subject to the Secured Parties, does not have a perfected Lienforegoing restrictions), promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest Mortgage in the Capital Stock favor of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Parties, covering such real or immoveable property (to the extent such property is not already subject to a perfected security interest with the first priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect Lien pursuant to such new Subsidiarya Security Document), including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be (ii) if reasonably requested by the Administrative Agent Agent, provide the Lenders with (x) title and (C) to deliver extended coverage insurance covering such real property together with endorsements reasonably requested by the Administrative Agent, in an amount and form reasonably acceptable to the Administrative Agent a certificate and at least equal to the purchase price of such Subsidiaryreal property (or such other lesser amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, substantially together with a surveyor’s certificate sufficient for the title insurance company to remove the standard survey exception and issue survey-related endorsements and (y) any estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (iii) a completed “Life-of-Loan” Federal Emergency Management Agency flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and, if such Mortgaged Property is located in a special flood hazard area, evidence of Exhibit C, flood insurance in accordance with appropriate insertions and attachments, the terms of the Loan Documents and (iv) 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. (dc) With respect Subject to Sections 5.10(d), (e) and (g), upon (x) the formation or acquisition of any new CFC Holding Company direct or Foreign indirect Subsidiary created (x) that is a Wholly Owned Subsidiary or acquired after (y) that is not a Wholly Owned Subsidiary and has consolidated assets with a book value of $500,000 or more (in each case, other than an Excluded Subsidiary or an Immaterial Subsidiary) by the Closing Date by Borrower or (y) any Loan Party Excluded Subsidiary ceasing to constitute an Excluded Subsidiary, promptly (which, for the purposes of this paragraph (d) shall include and in any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), event within sixty (60) days after the creation such formation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date Subsidiary so ceases to be an Excluded Subsidiary, or such longer period as the Administrative Agent shall Required Consent Parties may agree to in its sole writing in their discretion) (i) execute cause such Subsidiary (A) to become a party to a Guarantee Agreement and deliver to the Administrative Agent such appropriate Security Documents (or enter into amendments to the an existing Guarantee and Collateral Agreement or any existing Security Document as the Administrative Agent deems necessary or reasonably advisable advisable) to grant to the Administrative Agent, Agent for the benefit of the Secured Parties, a perfected first priority (subject to Liens permitted pursuant to Section 6.3) security interest in the Capital Stock of held by such CFC Holding Company Subsidiary and the other Collateral described in the relevant Security Document and to cause such Subsidiary to be a Guarantor and (B) to take such actions necessary or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% advisable to grant to the Administrative Agent for the benefit of the total outstanding voting Capital Stock Secured Parties, a perfected first priority (subject to Liens permitted pursuant to Section 6.3) security interest in the Collateral described in the relevant Security Documents with respect to such Subsidiary, including, without limitation, the filing of any Uniform Commercial Code financing statements, Intellectual Property Security Agreements or other similar filings in such CFC Holding Company or Foreign Subsidiary jurisdictions as may be required to by the Security Documents or by law or as may be so pledged) and requested by the Administrative Agent, (ii) deliver to the Administrative Agent the certificates certificates, if any, representing the Capital Stock of such pledged Subsidiary and all Capital StockStock held by such Subsidiary required to be delivered to the Administrative Agent under the applicable Security Documents, together with undated stock powers, in blank, and all intercompany notes owing from such Subsidiary to any Loan Party and all other promissory notes held by such Subsidiary and required to be delivered to the Administrative Agent under the applicable Security Documents, together with instruments of transfer in blank, in each case executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the case may be, (iii) deliver to the Administrative Agent deems necessary or an update to Schedule 3.15, and (iv) if reasonably advisable to perfect requested by the Administrative Agent’s security interest therein, deliver to the Administrative Agent legal opinions (addressed to the Administrative Agent and the Lenders) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) Notwithstanding anything to the contrary contained herein, in the event that the compliance by an LNG Group Member (including any non-Wholly Owned Subsidiary) with any of Section 5.10(b) or (c) would require the consent of any un-Affiliated third-party, such LNG Group Member shall use commercially reasonable efforts to obtain such consents or other deliveries. For the avoidance of doubt, (x) the use of commercially reasonable efforts, as contemplated by this Section 5.10, to obtain any consent or delivery shall not require the applicable LNG Group Member to pay to such un-Affiliated third-party a fee, premium or penalty or other consideration (other than expense reimbursement) and (y) in the event following the use of commercially reasonable efforts to obtain a consent or delivery, the applicable LNG Group Member is unable to obtain a necessary consent or delivery of the relevant un-Affiliated third-party, the Lenders hereby waive compliance by such LNG Group Member with the provisions of this Section 5.10 solely to the extent such consent or delivery is not obtained; provided that the consent or delivery giving rise to the waiver as contemplated in clause (y) shall have been required pursuant to a Contractual Obligation permitted hereunder that is binding on such Subsidiary or governing such assets, as applicable, and existing on the date such Subsidiary or assets, as applicable, were acquired (and not entered into in contemplation hereof). (e) Notwithstanding anything to the contrary contained herein, with respect to any Property of any LNG Group Member that would otherwise be required to be mortgaged or pledged in favor of the Secured Parties in accordance with this Section 5.10 (each such Property, an “Eligible Collateral Property”), in no event shall any LNG Group Member have any obligation to mortgage or pledge such Property in favor of the Administrative Agent for the benefit of the Secured Parties if such Property is to be used to secure any Indebtedness permitted by Section 6.2(c) within 90 days of the date such Property first qualifies as an Eligible Collateral Property; provided that if such Eligible Collateral Property does not actually secure such Indebtedness within such 90-day period then such Eligible Collateral Property shall be subject to the requirements of this Section 5.10 upon the expiration of such 90-day period relating to such Eligible Collateral Property. (f) Notwithstanding anything to the contrary herein, the Borrower shall be permitted at any time and from time to time to add any of its Subsidiaries as an additional Subsidiary Guarantor in accordance with this Section 5.10. (g) If, at any time and from time to time after the Closing Date, Immaterial Subsidiaries have in the aggregate consolidated assets with a book value in excess of $300,000 on the last day of any fiscal quarter of Holdings, cause, not later than 30 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement, one or more of such Immaterial Subsidiaries to become additional Subsidiary Guarantors (notwithstanding that such Subsidiaries are, individually, Immaterial Subsidiaries) and to comply with the requirements of Section 5.10(c) such that the foregoing condition ceases to be true.

Appears in 2 contracts

Samples: Senior Secured Delayed Draw Term Loan Credit Agreement (New Fortress Energy LLC), Senior Secured Delayed Draw Term Loan Credit Agreement (NFE Financial Holdings LLC)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any real property or any Property described in paragraph (b)c) of this Section 6.10, (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby 7.3 and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lender does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Lender or the ASOT Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Lender or the ASOT Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to (i) any fee interest in any real property having a an appraised value (together with improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (i) any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g) and 7.3), or (ii) subject to the related Loan Party obtaining the required landlord consent (provided that each Loan Party shall use commercially reasonable efforts to obtain such consent), any leasehold interest in real property as to which having an aggregate appraised value of $5,000,000 acquired or leased (including any leasehold property interest owned by any new Subsidiary acquired after the Administrative Agent determinesClosing Date) in one or a series of transactions after the Closing Date by any Group Member, in its reasonable discretion promptly (and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) any event no later than 60 days after the acquisition thereof thereof) (or such later date as the Administrative Agent shall agree to in its sole discretionA) execute and deliver a first priority Mortgage in favor of the Lender, covering such real property, (B) if requested by the Lender or the ASOT Administrative Agent, provide the ASOT Administrative Agent with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Lender or the ASOT Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary by the Lender or the ASOT Administrative Agent the documents and instruments required under Section 5.1(k) in connection with such Mortgage, each of the Existing Credit Agreement foregoing in form and substance reasonably satisfactory to the ASOT Administrative Agent and (including any C) if reasonably requested by the Lender or the ASOT Administrative Agent, deliver to the ASOT Administrative Agent legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the ASOT Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) by any Group Member, promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement as the ASOT Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent Lender the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of such Group Member, as the relevant Loan Partycase may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lender a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Lender or the ASOT Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsAgent, and (iv) if reasonably requested by the ASOT Administrative Agent, deliver to the ASOT 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 ASOT Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than any existing Subsidiary that becomes a CFC Holding Company or a Excluded Foreign SubsidiarySubsidiaries), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Lender or the ASOT Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent Lender the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Group Member, as the relevant Loan Partycase may be, and take such other action as may be necessary or, in the opinion of the Lender or the ASOT Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Lien of the Lender thereon, and (iii) if reasonably requested by the Lender or the ASOT Administrative Agent’s security interest therein, deliver to the ASOT 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 ASOT Administrative Agent.

Appears in 2 contracts

Samples: Credit Agreement (Archstone), Credit Agreement (Archstone)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property (other than assets expressly excluded from the Collateral pursuant to the Security Documents) located in the United States acquired or created after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), ) and (y) so long as Instruments, Certificated Securities, Securities and Chattel Paper, which are referred to in the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost last sentence of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this paragraph (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Parties does not have a perfected Lien, promptly promptly, but in any case within 30 days (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such property to the Collateral Agent and execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably requests to grant to the Collateral Agent for the benefit of the Secured Parties a security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in such property (with respect to property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, has a perfected security interest in such property as of the Closing Date), including, without limitation, the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent. Any Instrument, Certificated Security (other than in respect of the Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $2,500,000 shall be promptly delivered to the Collateral Agent indorsed in a manner reasonably satisfactory to the Collateral Agent to be held as Collateral pursuant to the relevant Security Document. (b) With respect to any fee owned real property located in the United States having a value (together with improvements thereof) of at least $2,500,000 acquired after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(g)) (i) within 30 days of such acquisition, give notice of such acquisition to the Collateral Agent and, if requested by the Collateral Agent promptly thereafter execute and deliver a first priority Mortgage (subject to Liens permitted by Section 7.3 other than clauses (a), (h)(ii), (z) and (aa) thereof) in favor of the Collateral Agent for the benefit of the Secured Parties, covering such real property (provided that no Mortgage nor survey shall be obtained if the Collateral Agent reasonably determines in consultation with the Borrower that the costs of obtaining such Mortgage or survey are excessive in relation to the value of the security to be afforded thereby), (ii) if reasonably requested by the Collateral Agent (A) provide the Lenders with a lenders’ title insurance policy with extended coverage covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate unless the title insurance policy referred to above shall not contain an exception for any matter shown by a survey (except to the extent an existing survey has been provided and specifically incorporated into such title insurance policy), each in form and substance reasonably satisfactory to the Collateral Agent, and (B) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (iii) if requested by the Collateral Agent deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (c) With respect to any new Domestic Subsidiary that is created or acquired after the Closing Date by any Loan Party, promptly, but in any case within 30 days of such creation or acquisition (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by such Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic Subsidiary, cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (to the extent the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, has a perfected security interest in any such property (with the priority required by same type of Collateral as of the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (cd) With respect to any new Foreign Subsidiary directly owned by Holdings, the Borrower or a Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) but in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), case within thirty (30) 30 days after the creation or acquisition of such new Domestic Subsidiary acquisition (or such later date as which period may be extended by the Administrative Agent shall agree to in its sole discretion) ), (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that (x) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged and (y) 100% of non-voting stock of any Foreign Subsidiary, if any, shall be required to be so pledged) and (ii) to the extent permitted by applicable law, deliver to the Administrative Collateral Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, necessary to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything to the contrary in any Loan Document, this Section shall not apply with respect to any collateral to the extent the Administrative Agent deems necessary or has reasonably advisable determined that the value of such collateral to perfect which this Section would otherwise apply is insufficient to justify the Administrative Agent’s security interest thereindifficulty, time and/or expense of obtaining a perfected Lien therefrom.

Appears in 2 contracts

Samples: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any other Loan Party (other than (wx) Excluded Assets, (y) any property described in paragraph (b), (c) or (d) below, below and (xz) any property subject to a Lien expressly permitted by Section 7.3(g6.2(j), (yn) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralo)) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Security Agreement or such the other documents Security Document (or execute new Security Documents) as the Administrative Agent Collateral Trustee deems reasonably necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to any Liens permitted under Section 6.2) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be reasonably required by the Guarantee and Collateral Security Agreement (or other Security Document) or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Trustee. (b) With respect to any fee interest in any real property having owned or acquired by the Borrower or any other Loan Party (other than (x) Excluded Assets and (y) any such real property (including improvements located on leased land) subject to any Liens permitted by Section 6.2), promptly (i) execute and deliver a first priority Mortgage, deed of trust or deed to secure debt, in favor of the Collateral Trustee, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Administrative Agent or the Collateral Trustee, provide the Secured Parties with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent or the Collateral Trustee) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Trustee in connection with such Mortgage, deed of trust or deed to secure debt, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent or the Collateral Trustee and (iii) if requested by the Administrative Agent or the Collateral Trustee, deliver to the Collateral Trustee local counsel opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent or the Collateral Trustee; provided the Borrower and the other Loan Parties shall not be required to mortgage any real property unless and until the value of all real property (together with improvements thereof) of at least exceeds $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns in which case all such real property shall be mortgaged). The Borrower and becomes a the other Loan Party pursuant Parties shall not be required to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request)leasehold mortgages. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or Capital Stock acquired after the Closing Date by the Borrower or any other Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than Capital Stock of an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary Excluded Subsidiary) (and other than any such Capital Stock constituting Excluded Assets or that is not a CFC Holding Companysubject to Liens permitted by Section 6.2(n)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent Collateral Trustee reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the such Capital Stock of such new Subsidiary that is owned by any Loan PartyStock, (ii) deliver to the Administrative Agent Collateral Trustee the certificates certificates, if any, representing such Capital Stock, together with related undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or the relevant Loan Party, (iii) in the case of any new Subsidiary that is not an Excluded Subsidiary, cause such new Subsidiary (A) to become a Subsidiary Guarantor and a party to this Agreement, the Guarantee Security Agreement, the Collateral Trust Agreement and Collateral Agreementany other Security Document to the extent applicable to such Subsidiary, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent Collateral Trustee for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee Security Agreement and the Collateral Trust Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be reasonably required by the Guarantee and Collateral Security Agreement or by law or as may be reasonably requested by the Administrative Agent Collateral Trustee and (C) to deliver to the Administrative Agent Collateral Trustee a certificate of such Subsidiary, substantially in the form of Exhibit CE, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative AgentCollateral Trustee, deliver to the Administrative Agent Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentCollateral Trustee. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after The Lenders acknowledge the Closing Date by any Loan Party (which, Collateral Trust Agreement provides for the purposes release of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after security interests in and Liens on the creation or acquisition Collateral and releases of such new CFC Holding Company or Foreign Subsidiary (or such later date as Subsidiaries from their obligations under the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to Credit Documents under the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest circumstances described therein.

Appears in 2 contracts

Samples: Credit Agreement (American Capital, LTD), Credit Agreement (American Capital, LTD)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lender does not have a perfected LienLien that is required by the Guarantee and Collateral Agreement (excluding, promptly for the avoidance of doubt, real property), the Borrower will, and will cause each other Loan Party to, promptly: (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Lender deems reasonably necessary or reasonably advisable to evidence that such Loan Party is a Guarantor and to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable in the reasonable opinion of the Lender to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority (except as expressly permitted by Section 7.2) security interest and Lien in any such property (with the priority Collateral as required by the Intercreditor Agreement)Guarantee and Collateral Agreement or any other Security Document, including (xif applicable) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or taking any other action as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableLender. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party with an individual fair market value in excess of $250,000, promptly (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), any event within sixty (60) days after the of such acquisition thereof (or such later date longer period as approved by the Administrative Agent shall agree to Lender in its sole reasonable discretion): (i) execute and deliver to a first priority Mortgage in the Administrative Agent the documents and instruments required under Section 5.1(k) maximum principal amount of the Existing Credit Agreement purchase price of such real property in jurisdictions that impose mortgage recording taxes (including any legal opinions or such other amount as shall be reasonably specified by the Lender in jurisdictions that do not impose mortgage recording taxes), in favor of the Lender covering such real property, (ii) if requested by the Lender, provide the Lender with (1) title and extended coverage insurance (with such customary endorsements, coinsurance and reinsurance as the Administrative Agent Lender may reasonably request)) covering such real property, paid for by the Borrower and issued by a nationally recognized title insurance company, in an amount equal to the purchase price of such real property, (2) a current ALTA/NSPS survey thereof, paid for by the Borrower and in each case, including all improvements, easements and other customary matters thereon reasonably required by the Lender, together with a surveyor’s certificate and complying in all material respects with the minimum detail requirements of the American Land Title Association and National Society of Professional Surveyors as such requirements are in effect on the date of preparation of such survey, or an existing survey, in each case, sufficient for such title insurance company to remove all standard survey exceptions from the title insurance policy relating to such real property and issue the customary survey related endorsements or otherwise reasonably acceptable to the Lender, (3) flood insurance determination certificates, and if applicable, evidence that the applicable Loan Party has obtained flood insurance covering such property in an amount required for the Lender to be in compliance with the National Flood Insurance Act of 1968 and (4) such other documents as the Lender may reasonably request that are in the Borrower’s possession with respect to any such real property, and (iii) if requested by the Lender, deliver to the Lender legal opinions relating to such Mortgage, which opinions shall be in form and substance reasonably satisfactory to the Lender. (c) With respect to any new Domestic direct or indirect Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary promptly (and that is not a CFC Holding Company)), in any event within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date longer period as approved by the Administrative Agent shall agree to Lender in its sole discretion) ): (i) execute and deliver to the Administrative Agent Lender such supplements, joinders or amendments to the Guarantee and Collateral Agreement applicable Security Documents as the Administrative Agent Lender deems reasonably necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned directly or indirectly by any such Loan Party, (ii) deliver to the Administrative Agent Lender such documents and instruments as may be required to grant, perfect, protect and ensure the certificates priority of such security interest, including but not limited to, the certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, any Control Agreement with respect to each Deposit Account or Securities Account (other than, in each case, Excluded Accounts), and any Security Document (or any amendment, supplement or modification thereof) with respect to Intellectual Property (other than Excluded Assets), (iii) cause such new Subsidiary or any Subsidiary formed for the purpose of acquiring any such Subsidiary (A) to become a party to the Guarantee and Collateral AgreementAgreement and other applicable Security Documents, (B) to take such actions as are reasonably necessary or reasonably advisable in the opinion of the Lender to grant to the Administrative Agent for the benefit of the Secured Parties Lender a perfected first priority security interest with the priority required by the Intercreditor Agreement (subject to Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Agreement or such other Security Documents, with respect to such new Subsidiary, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent Lender and (C) to deliver to the Administrative Agent Lender a customary certificate of such Subsidiary, substantially in a form reasonably satisfactory to the form of Exhibit CLender, with appropriate insertions and attachments, and (iv) if requested by the Administrative AgentLender, deliver to the Administrative Agent Lender 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. Lender. Notwithstanding the foregoing, (di) With other than the Collateral in which a Lien was previously granted or required to be granted by the Loan Parties, or the guarantees provided by the Loan Parties, in each case, on the Closing Date or pursuant to Section 5.2, the Loan Parties shall not be required to deliver any Collateral or perfect the Lender’s security interest with respect to any new CFC Holding Company Collateral (except to the extent perfection can be accomplished by filing UCC financing statements) or Foreign Subsidiary created provide any guarantee of the Obligations, in each case, if the cost of delivering or acquired after perfecting the lien in such Collateral or of providing such guarantee exceeds the benefit to the Lender (which shall take into account any adverse tax consequences suffered or expected to be suffered by the Borrower or any Loan Party as a result thereof), in each case, as reasonably determined by the Lender, and (ii) other than the Collateral in which a Lien was previously granted or required to be granted by the Loan Parties, or the guarantees provided by the Loan Parties, in each case, on the Closing Date by any Loan Party (whichor pursuant to Section 5.2, for the purposes of this paragraph (d) no such Liens or guarantees shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and provided by any Subsidiary in any case in which (ii) deliver or, if applicable, to the Administrative Agent extent that) the certificates representing provision of such pledged Capital Stock, together with undated stock powersLien or guarantee would violate applicable law, in blankeach case, executed and delivered as reasonably determined by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinLender.

Appears in 2 contracts

Samples: Credit Agreement (CalAmp Corp.), Credit Agreement (CalAmp Corp.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (other than (wx) any property Property described in paragraph (b), (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyReceivables Facility Assets) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such Property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having estate which, together with any related parcel of real estate not yet subject to a Mortgage, has a value (together with determined inclusive of any improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (i) any such real property estate subject to a Lien expressly permitted by Section 7.3(g)), promptly (i) execute and deliver a first priority mortgage or deed of trust (subject only to Liens permitted by Section 7.3) in favor of the Administrative Agent, for the benefit of the Lenders, covering such real estate, in form and substance reasonably satisfactory to the Administrative Agent, (ii) if reasonably requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real estate in an amount at least equal to the purchase price of such real estate (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any real property as to which consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with - 58 - 64 such mortgage or deed of trust, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a an Excluded Foreign Subsidiary or of a CFC Holding Companyany Receivables SPV) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Excluded Foreign Subsidiary) by the Borrower or any of its Subsidiaries, within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that which is owned by the Borrower or any Loan Partyof its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsAgent, and (iv) 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. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party (whichof its Subsidiaries, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that which is owned by the Borrower or any such Loan Party of its Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be and take such other action as (iii) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent deems necessary or legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably advisable satisfactory to perfect the Administrative Agent’s security interest therein. (e) Within 60 days after the Closing Date, deliver any items requested by the Administrative Agent pursuant to Sections 5.1(k)(ii) and 5.1(k)(iv) and not delivered on the Closing Date, together with, in the case of surveys, such endorsements to the title insurance policies referred to in Section 5.1(k)(iii) relating to the matters disclosed in such surveys as may be reasonably requested by the Administrative Agent. In the case of the Borrower, within 30 days after the Closing Date, acquire that portion of the capital stock of Heritage not acquired by the Borrower on the Closing Date.

Appears in 2 contracts

Samples: Credit Agreement (International Home Foods Inc), Credit Agreement (International Home Foods Inc)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Restatement Effective Date by the Borrower or any Loan Party Subsidiary Guarantor (other than (wx) any real property or any Property described in paragraph (b)) of this Section, (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, equity interest in its reasonable discretion and in consultation with the Borrower, that the cost or Property of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyForeign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in such Property, in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3, and, in the case of Pledged Stock, (i) Liens permitted by Section 7.3(s) and (ii) Liens permitted by Section 7.3(a) to the extent such property (with Liens are prior and superior to the priority required Liens granted under the Security Documents by the Intercreditor Agreementoperation of law), including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 2,000,000 acquired after the Closing Restatement Effective Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Subsidiary Guarantor (other than (i) any such real property owned by any Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to a Mortgage in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property, in the Capital Stock of such new Subsidiary that is owned each case prior and superior in right to any other Person (except Liens permitted by any Loan PartySection 7.3), (ii) deliver if reasonably requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary by the Administrative Agent the certificates representing in connection with such Capital StockMortgage, together with undated endorsements, in blank, executed and delivered by a duly authorized officer each of the relevant Loan Party, (iii) cause such new Subsidiary (A) foregoing in form and substance reasonably satisfactory to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iviii) 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. (dc) With respect to any new CFC Holding Company or Foreign Material Wholly Owned Domestic Subsidiary created or acquired after the Closing Date Restatement Effective Date, by the Borrower or any Loan Party (whichof its Domestic Subsidiaries, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Borrower or any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and its Domestic Subsidiaries, (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such other action as actions necessary to grant to the Administrative Agent deems necessary for the benefit of the Secured Parties a perfected security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3, and, in the case of Pledged Stock, (i) Liens permitted by Section 7.3(s) and (ii) Liens permitted by Section 7.3(a) to the extent such Liens are prior and superior to the Liens granted under the Security Documents by operation of law), including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or reasonably advisable to perfect by law or as may be requested by the Administrative Agent’s security interest therein, and (iv) 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.

Appears in 2 contracts

Samples: Credit Agreement, Credit Agreement (National CineMedia, LLC)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Borrower or any Loan Party of its Restricted Subsidiaries (other than (wx) any property Property described in paragraph (b), ) or paragraph (c) or (d) belowof this Section, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y7.03(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiaryProperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent Collateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $500,000 acquired after the Closing Date by the Borrower or any of its Restricted Subsidiaries (other than any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.03(g)), promptly (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (ivii) if requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. (dc) With respect to any new CFC Holding Company or Restricted Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Subsidiary that becomes ceases to be an Excluded Foreign Subsidiary and any Unrestricted Subsidiary that is redesignated as a CFC Holding Company or a Foreign SubsidiaryRestricted Subsidiary pursuant to Section 6.11(l)), within sixty (60) days after by the creation Borrower or acquisition any of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Restricted Subsidiaries, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by the Borrower or any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and its Restricted Subsidiaries, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement (subject to Liens permitted by Section 7.02) with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent, and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any of its Restricted Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary or advisable in order to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by the Borrower or any of its Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Restricted Subsidiary, as the case may be, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable reasonable opinion of the Collateral Agent, desirable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s security interest therein, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (e) Promptly upon the request of the Collateral Agent, Borrower shall establish a cash management system subject to a depositary agreement satisfactory to the Collateral Agent whereby lock boxes, lock box accounts, and concentration accounts are established and maintained under the sole dominion and control of the Collateral Agent, into which all payments on and proceeds of (i) Private Accounts, and (ii) to the extent permitted and in a manner consistent with all applicable laws and regulations, Government Receivables, shall be deposited and from which all collected funds will be transferred.

Appears in 2 contracts

Samples: Credit Agreement (Rotech Healthcare Inc), Credit Agreement (Rotech Healthcare Inc)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Effective Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, below and (xy) any property subject to a Lien expressly permitted by Section 7.3(g) or (h), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or may reasonably advisable request to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or as the Collateral Agent may reasonably advisable request to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority (except with respect to Liens expressly permitted by Section 7.3(h)) security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 and any leasehold interest in real property under which the annual rent exceeds $1,000,000 acquired after the Closing Effective Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and or (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyh)), within sixty promptly (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a first priority Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) if reasonably requested by the Collateral Agent, provide the Collateral Agent with (x) title and extended coverage insurance covering such real property in an amount at least equal to the Administrative purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) to the extent the same can be obtained by the exercise of commercially reasonably efforts, any consents or estoppels reasonably requested by the Collateral Agent the documents and instruments required under Section 5.1(k) in connection with such Mortgage, each of the Existing Credit Agreement foregoing in form and substance reasonably satisfactory to the Collateral Agent and (including any iii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance reasonably request)satisfactory to the Collateral Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Effective Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or may reasonably advisable request to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or as the Collateral Agent may reasonably advisable request to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Collateral Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CF, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Effective Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or may reasonably advisable request to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided provided, that in no event (A) shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledgedpledged and (B) and shall any Excluded Foreign Subsidiary be required to become a Subsidiary Guarantor), (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Collateral Agent deems necessary or may reasonably advisable request to perfect the Administrative Collateral Agent’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent.

Appears in 2 contracts

Samples: Credit Agreement (Virgin Mobile USA, Inc.), Credit Agreement (Virgin Mobile USA, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Original Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Collateral Agent or the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject to the Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording or the Collateral Agent. Each of intellectual property security agreements with the United States Patent and Trademark Office Lenders hereby authorize each Administrative Agent and the United States Copyright OfficeCollateral Agent to enter into any such amendments, as applicablemodifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (b) With respect to any Real Property (x) owned or acquired in fee interest in by any real property Loan Party on the Original Closing Date or the Restatement Effective Date, as applicable, having a fair market value (together with improvements thereof) of at least $10,000,000 acquired 1,000,000 (as reasonably determined by the Borrower) (each such Real Property, subject to the last sentence of this Section 7.08(b), an “Initial Mortgaged Property”), or (y) acquired, constructed or improved after the Closing Restatement Effective Date having a fair market value (together with improvements thereof) of at least $1,000,000 (as reasonably determined by the Borrower) and owned in fee by any Loan Party (including a Person or owned by any Restricted Subsidiary that owns such real property and becomes a Loan Party pursuant after the Restatement Effective Date) (each such Real Property, subject to the last sentence of this Section 6.10) 7.08(b), being “Additional Real Property”), within 150 days after the Original Closing Date or the Restatement Effective Date, as applicable, for each Initial Mortgaged Property (other than (i) any as such real property subject date may be extended from time to a Lien expressly permitted time by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) or in the case of any Additional Real Property, 90 days after the acquisition, construction or improvement thereof (or the creation or acquisition of any Subsidiary Guarantor which owns Additional Real Property, as applicable) (as may be extended by the Administrative Agent in its reasonable discretion) (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction (if the Mortgage does not constitute a UCC fixture filing in such jurisdiction), each in form and substance reasonably satisfactory to the Administrative Agent and the documents Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject to Liens permitted hereunder, against such Real Property, (ii) provide the Lenders as addressee, for their benefit or as insured (as the case may be), with title policies, extended coverage and insurance, ALTA surveys, such affidavits, certificates, instruments of indemnification, legal opinions, (iii)(a) a “Life‑of‑Loan” Federal Emergency Management Agency Standard Flood Hazard Determination indicating whether the Mortgaged Property is in a “special flood hazard area” and (b) if such Mortgaged Property is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (C) if such notice is required under to be provided to the applicable Loan Party and flood insurance is available in the community in which such Mortgaged Property is located, evidence of flood insurance in accordance with Section 5.1(k7.05(c) of hereof, and (iv) such other information, documentation (including, but not limited to, appraisals, available environmental reports, and to the Existing Credit Agreement (including any legal opinions extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably requestor the Collateral Agent). In connection with the foregoing requirements, it is understood and agreed that all Initial Mortgaged Properties shall be owned by one or more Loan Parties. (c) With with respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Restatement Effective Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Guarantor after the Restatement Effective Date), promptly, and in any event within thirty (30) 30 days after the of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Agent or the Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to the Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Administrative Agent and the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor and (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with (subject to the priority required by the Intercreditor Agreement Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent and (Cc) to deliver to the Administrative Agent and the Collateral Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Original Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Collateral Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Collateral Agent. Each of the Lenders hereby authorize each Administrative AgentAgent and the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. Each of the Lenders hereby authorize each Administrative Agent and the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (d) With with respect to any new CFC Holding Company or Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary that is owned directly by a Loan Party created or acquired after the Closing Restatement Effective Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent or Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in (subject to the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that Liens permitted hereunder) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required described in clause (i) of the definition of Excluded Foreign Subsidiary that is owned directly by a Loan Party and 100% of the total outstanding non‑voting Capital Stock of such Excluded Foreign Subsidiary in each case, to be so pledged) the extent owned by one or more Loan Parties, and (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), the Borrower may notify the Administrative Agent at any time that the Borrower desires to join an Excluded Foreign Subsidiary as a Subsidiary Guarantor under this Agreement and take the other Loan Documents, and, in any such case, as reasonably agreed by the Administrative Agent and the Borrower, cause such Excluded Foreign Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other action documentation as the Collateral Agent deems reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Excluded Foreign Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Excluded Foreign Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Excluded Foreign Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Administrative Agent and the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (e) with respect to any new Non‑Guarantor Subsidiary created or acquired after the Restatement Effective Date by any Loan Party (but excluding any Unrestricted Subsidiary, any Excluded Foreign Subsidiary and any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to this Agreement and the Security Agreement as the Collateral Agent or the Administrative Agent deems necessary or reasonably advisable to perfect grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to the Liens permitted hereunder) in the Capital Stock of such Non‑Guarantor Subsidiary that is owned by any Loan Party and (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), the Borrower may notify the Administrative Agent’s Agent at any time that the Borrower desires to join a Non-Guarantor Subsidiary (other than any Unrestricted Subsidiary) as a Subsidiary Guarantor under this Agreement and the other Loan Documents, and, in any such case, as reasonably agreed by the Administrative Agent and the Borrower, cause such Non-Guarantor Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other documentation as the Collateral Agent deems reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Non-Guarantor Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Non-Guarantor Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Non-Guarantor Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Administrative Agent and the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document to the contrary, (i) in no event shall any Loan Party be required to obtain control agreements or similar arrangements with respect to deposit or securities accounts and (ii) no actions (including, for the avoidance of doubt, filings and recordations) in any non-U.S. jurisdiction (including, for the avoidance of doubt, with respect to any Intellectual Property registered, patented or applied for in any non-U.S. jurisdiction) shall be required in order to create any security interest thereininterests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements (including, for the avoidance of doubt, with respect to any Intellectual Property registered, patented or applied for in any non-U.S. jurisdiction) governed under the laws of any non-U.S. jurisdiction).

Appears in 2 contracts

Samples: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.), Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Term Loan Obligations Payment Date has not occurred, any ABL Term Loan Priority Collateral as to which the ABL Term Loan Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby thereby) and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Term Loan Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) subject to the Intercreditor Agreement, to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) ), shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and ), (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, Party and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein; provided, that such Loan Party shall be required to provide a local law pledge agreement with respect to such Capital Stock (and local law opinions relating to such local law pledge agreement, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent) as reasonably requested by the Administrative Agent.

Appears in 2 contracts

Samples: Abl Credit Agreement (TTM Technologies Inc), Abl Credit Agreement (TTM Technologies Inc)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Amendment/Restatement Effective Date by the Borrower or any Loan Party of its Subsidiaries (other than (v) any leasehold interests in real property, (w) any property Intellectual Property to the extent creation of a security interest therein would be contractually prohibited, (x) any Property described in paragraph (b), ) or paragraph (c) or (d) belowof this Section, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y6.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property Property (with the priority required subject to Liens permitted by the Intercreditor AgreementSection 6.3), including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 500,000 acquired after the Closing Amendment/Restatement Effective Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (i) any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g6.3(g)), promptly (i) execute and deliver a first priority Mortgage in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real estate as to which well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as covering matters consistent with those covered by opinions of counsel delivered on the Amendment/Restatement Effective Date relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary of the Borrower (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Amendment/Restatement Effective Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after by the creation Borrower or acquisition any of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any Loan Partyof its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiarySubsidiary (subject to Liens and other matters permitted by Section 6.3 and excluding leasehold interests in real property, including and Intellectual Property to the extent creation of a security interest therein would be contractually prohibited), including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent Agent, and (Civ) to if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions covering matters consistent with those covered by the opinions delivered by Dechert LLP on the Amendment/Restatement Effective Date relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Amendment/Restatement Effective Date by the Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a certificate perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any of its Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, substantially as the case may be, and take such other action as may be necessary or, in the form opinion of Exhibit Cthe Administrative Agent, with appropriate insertions and attachmentsdesirable to perfect the Lien of the Administrative Agent thereon, and (iviii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 2 contracts

Samples: Revolving Credit Agreement (B&g Foods Inc), Term Loan Agreement (B&g Foods Inc)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Parties (other than (wx) any property described in paragraph (b), ) below and (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralconstituting Excluded Property) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Security Documents or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in under the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer laws of the relevant Loan Party, (iii) cause United States in such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiaryproperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement Security Documents or by law or as may be requested by the Administrative Agent. (i) As soon as possible (and in no event later than 45 days after the delivery of any financial statements under subsection 6.1(a) or (b), for any fiscal period, in the case of Subsidiaries referred to in the following clause (A) which period may be extended by the Administrative Agent from time to time in its discretion), cause (A) all of the Capital Stock (other than Excluded Property) owned directly or indirectly by the Borrower of each of the Borrower’s direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary or Immaterial Subsidiary) to be pledged to the Collateral Agent, pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent, (B) if requested by the Administrative Agent, cause all of the Capital Stock (other than Excluded Property) owned directly or indirectly by the Borrower of any of the Borrower’s direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary and whether or not such Domestic Subsidiary is an Immaterial Subsidiary) to be pledged to the Collateral Agent pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent, (C) 65% of the voting Capital Stock and all non-voting Capital Stock (other than Excluded Property) of each of the Borrower’s or any of its Domestic Subsidiaries’ direct Foreign Subsidiaries which are not Immaterial Subsidiaries (or such lesser amount as may be owned by the Borrower and its Domestic Subsidiaries), to be pledged to the Collateral Agent pursuant to the Security Documents, for the ratable benefit of the Secured Parties, pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent and (CD) the Administrative Agent to deliver receive legal opinions of counsel to the Borrower acceptable to the Administrative Agent a certificate covering such matters in respect of such pledges as the Administrative Agent shall reasonably request. (ii) Notwithstanding the foregoing, cause the Capital Stock of any Special Purpose Subsidiary or Subsidiary of the Borrower which acts as a purchaser of receivables for a receivables securitization program of the Borrower and its Domestic Subsidiaries to be pledged as Collateral pursuant to the Security Documents. (c) As soon as possible, cause (i) each of the Borrower’s direct or indirect Domestic Subsidiaries (other than (A) an Excluded Subsidiary, substantially (B) an Immaterial Subsidiary (provided that all Immaterial Subsidiaries excluded under this clause (B) and clause (b) of the definition of “Guarantor” shall not at any time contribute in the aggregate more than 5% of Consolidated Assets or more than 5% of Consolidated Revenues), (C) a joint venture in which not more than 85% of the aggregate Capital Stock of such joint venture is held by the Loan Parties in the aggregate or (D) a direct holding company of one or more joint ventures under clause (C) hereof, provided that such holding company does not engage in any business or own any assets other than owning the Capital Stock of such joint ventures) to become a Guarantor by executing and delivering a joinder or assumption agreement to the Guarantee and Collateral Agreement in a form of Exhibit C, with appropriate insertions and attachments, reasonably requested by the Administrative Agent if such Subsidiary is not then a Guarantor and (ivii) opinions of counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, covering such matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall reasonably request to be delivered to the Administrative Agent. (d) With respect to any fee interest in any real property having a fair market value (together with improvements thereof) in the good faith estimation of the Borrower of at least $5,000,000 or otherwise not constituting Excluded Property acquired after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(g)), as soon as reasonably possible and in any event within 60 days after such acquisition (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders, covering such real property, creating a Lien on such real property prior and superior in right to all other Liens on such real property (except Liens permitted by Section 7.3), (ii) if reasonably requested by the Administrative Agent, provide the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders with (x) a binding pro forma mortgagee’s title insurance policy or marked-up unconditional commitment to issue such insurance covering such real property in an amount equal to the purchase price of such real property (or such lesser amount as shall be reasonably specified by the Administrative Agent) as well as a current map or plat of an as-built survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent Agents 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. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 2 contracts

Samples: Credit Agreement (Lear Corp), Credit Agreement (Lear Corp)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Term Loan Obligations Payment Date has not occurred, any ABL Term Loan Priority Collateral as to which the ABL Term Loan Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby thereby) and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Term Loan Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). 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 until the date that is (a) if such real property is not located in a “special flood hazard area”, ten (10) Business Days or (b) if such real property is located in a “special flood hazard area”, twenty (20) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Laws, evidence of required flood insurance. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) subject to the Intercreditor Agreement, to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) ), shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and ), (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, Party and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 2 contracts

Samples: Abl Credit Agreement (TTM Technologies Inc), Abl Credit Agreement (TTM Technologies Inc)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property (other than assets expressly excluded from the Collateral pursuant to the Security Documents) located in the United States acquired or created after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), ) and (y) so long as such Instruments, Certificated Securities, Securities and Chattel Paper referred to in the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost last sentence of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this clause (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Parties does not have a perfected Lien, promptly promptly, but in any case within 30 days (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such property to the Collateral Agent and execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably requests to grant to the Collateral Agent for the benefit of the Secured Parties a security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in such property (with respect to property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, has a perfected security interest in such property as of the Closing Date), including, without limitation, the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent. Any Instrument, Certificated Security (other than in respect of the Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $1,000,000 shall be promptly delivered to the Collateral Agent indorsed in a manner reasonably satisfactory to the Collateral Agent to be held as Collateral pursuant to the relevant Security Document. (b) With respect to any fee owned real property located in the United States having a value (together with improvements thereof) of at least $20,000,000 acquired after the Closing Date by any Loan Party (i) within 30 days of such acquisition, give notice of such acquisition to the Collateral Agent and, if requested by the Collateral Agent, reasonably promptly thereafter (A) execute and deliver a first priority Mortgage (subject to Liens permitted by Section 7.3 other than clause (cc) thereof) in favor of the Collateral Agent for the benefit of the Secured Parties, covering such real property (provided that no Mortgage, survey or title insurance shall be required or obtained if the Collateral Agent reasonably determines in consultation with the Borrower that the costs of obtaining such Mortgage or survey or title insurance are excessive in relation to the value of the security to be afforded thereby), (B) if a Mortgage is to be provided under subclause (i)(A) above, and if reasonably requested by the Collateral Agent (other than with respect to clauses (3) and (4) below) or a Lender (solely with respect to clause (3)(ii) below) (1) provide the Lenders with a lenders’ title insurance policy with coverage and all required endorsements reasonably acceptable to the Collateral Agent covering such real property and fixtures in an amount at least equal to the purchase price of such real property and fixtures (or such lesser amount as shall be reasonably requested by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate (except to the extent an existing survey has been provided), each in form and substance reasonably satisfactory to the Collateral Agent, (2) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent, (3)(i) confirm that the Collateral Agent has obtained a completed Flood Hazard Determination with respect to each Mortgaged Property and (ii) provide to any Lender such flood certificates or other information or documentation reasonably requested by such Lender to enable such Lender to comply with applicable Flood Laws, and (4) if any Mortgaged Property is a Special Flood Hazard Property, deliver to the Collateral Agent evidence of Flood Insurance complying with Flood Laws, including (x) evidence as to whether the community in which such Mortgaged Property is located participates in the National Flood Insurance Program, (y) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Mortgaged Property is located in a Special Flood Hazard Area and as to whether the community in which such Mortgaged Property is located participates in the National Flood Insurance Program and (z) if the community in which such Mortgaged Property is located participates in the National Flood Insurance Program, copies of the applicable Loan Party’s application for a Flood Insurance policy plus proof of premium payment, a declaration page confirming that Flood Insurance has been issued, or other evidence of Flood Insurance, such Flood Insurance to be in an amount equal to at least the amount required by the Flood Laws or such greater amount as may be required by the Collateral Agent, naming the Collateral Agent as sole loss payee and mortgagee on behalf of the Secured Parties, and otherwise including terms satisfactory to the Collateral Agent, all such matters referred to in this clause (4) to be approved by the Collateral Agent (the requirements set forth in clauses 3 and 4 hereof are referred to herein as the “Flood Insurance Requirements”), and (ii) if requested by the Collateral Agent deliver to the Collateral Agent legal opinions relating to the Mortgage described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (c) With respect to (x) any new Domestic Subsidiary (other than an Excluded Domestic Subsidiary) that is created or acquired after the Closing Date by any Loan Party or (y) any Unrestricted Subsidiary that becomes a Restricted Subsidiary (other than an Excluded Domestic Subsidiary) after the Closing Date, promptly, but in any case within 30 days of such creation, acquisition or designation (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such acquisition, creation or designation to the Collateral Agent and, other than in the case of an Excluded Domestic Subsidiary, execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by such Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic Subsidiary (other than an Excluded Domestic Subsidiary), cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (to the extent the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, has a perfected security interest in any such property (with the priority required by same type of Collateral as of the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (cd) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of FSHCO directly owned by Holdings, a CFC Holding Company) Borrower or a Domestic Subsidiary that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) but in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), case within thirty (30) 30 days after the creation or acquisition of such new Domestic Subsidiary acquisition (or such later date as which period may be extended by the Administrative Agent shall agree to in its sole discretion) ), (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that (A) in no event shall more than 65% of the total outstanding voting Capital Stock of (i) any such CFC Holding Company or Foreign Subsidiary and (ii) any FSHCO be required to be so pledged and (B) 100% of non-voting Capital Stock of (i) any Foreign Subsidiary and (ii) any FSHCO, if any, shall be required to be so pledged) and (ii) to the extent permitted by applicable law, deliver to the Administrative Collateral Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, necessary to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything to the contrary in any Loan Document, this Section shall not apply with respect to any collateral to the extent the Administrative Agent deems necessary or has reasonably advisable determined that the value of such collateral to perfect which this Section would otherwise apply is insufficient to justify the Administrative Agent’s security interest thereindifficulty, time and/or expense of obtaining a perfected Lien therefrom.

Appears in 1 contract

Samples: Credit Agreement (Macquarie Infrastructure Corp)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any Loan Party Wholly Owned Subsidiary thereof (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in any such property (with subject to Liens on assets other than Capital Stock permitted under Section 7.3 and as otherwise permitted to not be so granted according to the priority required by terms of the Intercreditor AgreementCollateral Documents), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing the delivery of certificates and recording transfer powers in respect of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableany newly formed or acquired Subsidiary. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 500,000 acquired after the Closing Date by any Loan Party Party, promptly (including i) execute and deliver a Person that owns first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Secured Parties with (x) title and extended coverage insurance covering such real property and becomes a Loan Party pursuant in an amount at least equal to this Section 6.10) (other than (i) any the purchase price of such real property subject to (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a Lien expressly permitted by Section 7.3(g) current ALTA survey thereof, together with a surveyor’s certificate and (iiy) any real property as to which consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic domestic wholly owned first tier Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party the Borrower (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not becomes a CFC Holding Company)wholly owned first tier Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Partythe Borrower, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Bridge Loan Credit Agreement (CKX, Inc.)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date (other than the Settlement Property) or, in the case of inventory or equipment, any Collateral (having a value in excess of $25,000) moved after the Closing Date by any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), ) or (c) or (d) below, (x) any property subject to a Lien expressly permitted by of this Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby5.09) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 10 days following the date of such acquisition) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Agent or the Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable to grant to to, or continue on behalf of, the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement)Collateral, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value Collateral consisting of Real Property (together with improvements thereofother than the Settlement Property) or any material lease of at least $10,000,000 Collateral consisting of Real Property acquired or leased after the Closing Date by the Borrowers or any other Loan Party Party, promptly (including and, in any event, within 10 days following the date of such acquisition) (i) execute and deliver a Person that owns first priority Mortgage in favor of the Administrative Agent (subject only to Liens permitted by Section 6.02), for the benefit of the Secured Parties, covering such real property and becomes complying with the provisions herein and in the Security Documents, (ii) provide the Secured Parties with title and extended coverage insurance in an amount at least equal to the purchase price of such Real Property (or such other amount as the Agents shall reasonably specify), surveys, and if applicable, flood insurance, lease estoppel certificates, memoranda or amendments, all in accordance with the standards for deliveries contemplated on the Closing Date, (iii) if requested by any Agent, deliver to the Agents legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Agents and (iv) deliver to the Agents a notice identifying, and upon any Agent's request, provide a copy of, the consultant's reports, environmental site assessments or other documents relied upon by any Loan Party pursuant to this Section 6.10) (other than (i) determine that any such real property subject included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request)material Environmental Liability. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party Party, promptly (whichand, for the purposes of this paragraph (c), shall include (1) in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 10 days after the following such creation or acquisition the date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by any Loan Party (subject only to Liens permitted by Section 6.02), (ii) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrowers or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement (and provide Guarantees of the Obligations) and the Intellectual Property Security Agreements and (B) to take such actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office and the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Intellectual Property Security Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to or the Administrative Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent or the Collateral 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. (d) With respect to any new CFC Holding Company Agent or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinapplicable."

Appears in 1 contract

Samples: Revolving Credit Agreement (Maxxam Inc)

Additional Collateral, etc. (a) With Subject to and consistent with the Security and Guarantee Principles, with respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly within thirty (30) days of such acquisition (or ninety (90) days in the case of an acquisition by a Foreign Subsidiary that is a Loan Party), or such longer period as agreed to by the Collateral Agent in its sole discretion, (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee and Collateral Agreement applicable Security Documents or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable first priority security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by other applicable law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With Subject to and consistent with the Security and Guarantee Principles, with respect to any fee interest in any real property Real Property (excluding any Leaseholds) having aacquired by a Loan Party after the Closing Date, if the aggregate fair market value (together with improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, Party,all interests in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby)Non-Mortgaged Real Property exceeds $30,000,000, within sixty ninety (6090) days after the acquisition thereof (or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) of the acquisition of such interest, (i) execute and deliver a MortgageMortgages, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property,the Loan Parties’ interests in Real Property such that the fair market value (together with improvements thereof) of all Non-Mortgaged Real Property does not exceed $30,000,000, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction, each in form and substance reasonably satisfactory to the Administrative Agent the documents Collateral Agent, as may be necessary to create a valid, perfected first and instruments required subsisting Lien, subject to liens permitted under Section 5.1(k9.3, against such Real Property, (ii) provide the Lenders with title and extended coverage insurance covering such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above in an amount at least equal to the fair market value of such Real Property (or such lesser amount as shall be specified by the Existing Credit Agreement Collateral Agent) together with title endorsements reasonably requested by the Collateral Agent, (iii) provide the Lenders with an ALTA survey thereofin respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to subsection (ii) above), together with a surveyor’s certification, (iv) such affidavits, certificates, instruments of indemnification and other items (including any a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the applicable title policy and endorsements referenced in clause (ii) above in respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above, (v) deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Administrative Collateral Agent may reasonably request, including, without limitation, the enforceability, due authorization, execution and delivery of the applicable Mortgage, (vi) deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable Loan Party entering into the applicable Mortgage) subject to an applicable Mortgage pursuant to clause (i) above, and in the event any such Real Property or a portion thereof is located within an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Real Property or the applicable portion thereof; and (vii) such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 9.3 against the Real Property covered by the applicable Mortgage pursuant to clause (i) above. (c) With Subject to and consistent with the Security and Guarantee Principles, with respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Party, within thirty (30) days after the of such creation or acquisition of such new Domestic Subsidiary (or ninety (90) days in the case of a Subsidiary Guarantor that is a Foreign Subsidiary), or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) , (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee Security Documents and Collateral Agreement such comparable documentation or other Security Documents as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor and guarantee the Obligations, (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, or such comparable documentation or other Security Documents requested by the Collateral Agent, as applicable, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the assets (other than Excluded Assets) of such new Subsidiary Guarantor, including the filing of UCC financing statements in such jurisdictions as may be required by the Security Agreement or comparable documentation or by other applicable law or as may be requested by the Collateral Agent and (c) to deliver to the Collateral Agent (i) a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and attachments and (ii) if reasonably requested by the Collateral Agent, a legal opinion from counsel to such new Subsidiary Guarantor in form and substance satisfactory to the Collateral Agent and (iv) if such new Subsidiary Guarantor owns real property with a fair market value of at least $5,000,000, within ninety (90) days of such party becoming a Subsidiary Guarantor (or such longer period as agreed to by the Collateral Agent in its sole discretion), deliver the documents required pursuant to Section 8.8(b) hereof. (d) Subject to and consistent with the Security and Guarantee Principles, with respect to any new Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary (other than an Immaterial Subsidiary) created or acquired after the Closing Date by any Loan Party, within ninety (90) days of such creation or acquisition, (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (entity; provided that in no event shall not more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary shall be required to be so pledged) and , (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party and (iii) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Collateral Agent may request. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Excluded Foreign Subsidiary and any Non-Guarantor Subsidiary to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person party thereto), within thirty (30) days of such creation or acquisition (or such longer period as agreed to by the Collateral Agent in its sole discretion), (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party, (iii) cause such new Subsidiary Guarantor to deliver to the Collateral Agent a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and take attachments (including modifications based on the Security and Guarantee Principles), and (iv) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such other action matters as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinmay request.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Ancestry.com LLC)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Collateral Agent or the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (to the extent required by the applicable Security Document) first priority security interest in any such property (with subject to the priority required by the ABL/Term Loan Intercreditor AgreementAgreement and Permitted Liens), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in Real Property (other than an Excluded Owned Real Property) acquired at any real property having a value (together with improvements thereof) of at least $10,000,000 acquired time after the Closing Date that is fee-owned by any Loan Party (including a Person or owned by any Subsidiary that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which after the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyClosing Date), within sixty (60) 90 days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of, or the joinder of such new Domestic any Subsidiary (or such later date as, a Subsidiary Guarantor which owns Real Property, as applicable), as may be extended by the Administrative Agent shall agree to in its sole reasonable discretion) , (i) execute and deliver to a Mortgage, in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security covering such interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyReal Property, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest along with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiarycorresponding Real Property Deliverables, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be each in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after Agent and the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Partiesas may be necessary to create a valid, a perfected first priority security interest in the Capital Stock of and subsisting Lien, subject to Liens permitted under Section 8.02, against such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.Real Property,

Appears in 1 contract

Samples: First Lien Term Loan Credit and Guarantee Agreement (Alden Global Capital LLC)

Additional Collateral, etc. (a) With respect to any property ------------------------------- acquired after the Closing Restatement Effective Date by any Loan Party of TWTC's Subsidiaries (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) property acquired by any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyExcluded Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 (net of any amount of any third party mortgage on such property existing when acquired) acquired after the Closing Restatement Effective Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of TWTC's Subsidiaries (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (z) real property acquired by any Excluded Foreign Subsidiary), promptly (i) execute and deliver a first priority mortgage, in form and substance reasonably satisfactory to the Administrative Agent, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA or equivalent survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such mortgage or deed of trust, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Restatement Effective Date by TWTC or any Loan Party of its Subsidiaries (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by TWTC or any Loan Partyof its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsindorsements, in blank, executed and delivered by a duly authorized officer an appropriate person of TWTC or such Subsidiary, as the relevant Loan Partycase may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative AgentAgent (and consistent with the opinion coverage provided on the Restatement Effective Date), 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. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Restatement Effective Date by TWTC or any Loan Party (whichof its Subsidiaries, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by TWTC or any such Loan Party of its Subsidiaries (provided that in no event shall more than 65% of the total -------- outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powersindorsements, in blank, executed and delivered by a duly authorized officer an appropriate person of TWTC or such Subsidiary, as the relevant Loan Partycase may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s 's security interest therein, and (iii) if reasonably requested by the Administrative Agent (and consistent with the opinion coverage provided on the Restatement Effective Date), 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.

Appears in 1 contract

Samples: Credit Agreement (Time Warner Telecom Inc)

Additional Collateral, etc. At any time that Essent does not maintain an Investment Grade Rating: (a) With respect to any property acquired after the Closing Date by any Loan Party Borrower or Guarantor (other than (wx) any property described in paragraph (b), (c) or (dc) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(gSections 6.3(g), (yj) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and or (s) or (z) any property (orexcluded from the definition of Collateral in the Guarantee and Security Agreement, so long as the ABL Obligations Payment Date has not occurredIrish Debenture, Bermuda Debenture or any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebySecurity Document) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly as soon as required by the Guarantee and Collateral Agreement, Irish Debenture, Irish Share Charge, Bermuda Debenture or other Security Document, as applicable, (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Agreement, Irish Debenture, Irish Share Charge or Bermuda Debenture or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions and other filings as may be required by the Guarantee and Collateral Agreement or by law Agreement, Irish Debenture, Irish Share Charge, Bermuda Debenture, any other Security Document or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Borrower or Guarantor (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby6.3(g)), as soon as required by the Guarantee and Collateral Agreement, Irish Debenture, Irish Share Charge, Bermuda Debenture or other Security Document or, if not specified therein, within sixty (60) 60 days after the acquisition thereof (or as such later date as may be extended by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) provide the Lenders with (x) a lender’s policy of title insurance covering such real property in an amount equal to the purchase price of such real property (or such other amount as shall be reasonably acceptable to the Administrative Agent) as well as a current ALTA survey thereof, certified by a licensed surveyor and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage with respect to other Persons having an interest in such real property, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than an Excluded Subsidiary or, in the case of any Immaterial Subsidiary that is not a Wholly Owned Subsidiary, unless such Subsidiary is prohibited by any CFC Holding Company or contractual restriction existing on the date such Subsidiary is acquired (so long as, in respect of any Subsidiary such contractual prohibition, such prohibition is not incurred in contemplation of a Foreign Subsidiary or of a CFC Holding Companysuch acquisition)) created or acquired after the Closing Date by any Loan Party (whichBorrower or Guarantor, for as soon as required by the purposes of this paragraph (c)Guarantee and Collateral Agreement, shall include (1) any existing Subsidiary (Irish Debenture, Bermuda Debenture or other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is Security Document, as applicable, or, if not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))specified therein, within thirty (30) 30 days after the creation acquisition or acquisition of formation thereof (as such new Domestic Subsidiary (or such later date as may be extended by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Agreement, Irish Debenture, Bermuda Debenture or other Security Document, as applicable, as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyBorrower or Guarantor, (ii) deliver to the Administrative Agent the any certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, Borrower or Guarantor and (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary ; provided that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to in the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit case of the Secured Parties, a perfected first priority security interest in pledge of the Capital Stock of such CFC Holding Company or a Foreign Subsidiary that is owned held by a Borrower or Guarantor organized under the laws of any jurisdiction within the United States, such Loan Party (provided that in pledge shall be limited to no event shall more than 6566 2/3 % of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and (ii) deliver subject to the Administrative Agent foregoing clause (i), this Section 5.9(c) shall not apply to any Foreign Subsidiary in respect of which the certificates representing pledge of all of the Capital Stock of such pledged Capital Stock, together with undated stock powersSubsidiary as Collateral would, in blankthe good faith judgment of a Borrower, executed and delivered by a duly authorized officer result in adverse tax consequences to Essent or any of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinits Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (Essent Group Ltd.)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Closing Date or, in the case of inventory or equipment that is part of the Collateral, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than (w) any property Collateral described in paragraph (bSection 5.09(b), (c5.09(c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g5.09(d), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 Business Days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property Excluded Perfection Assets and, except with respect to Pledged Securities in the possession of the Collateral Trustee, subject to Permitted Liens, and in respect of Pledged Securities in the possession of the Collateral Trustee, the Permitted Liens set forth in clause (g) of the definition thereof and with the priority required by the Intercreditor Agreementrespect to any other Priority Lien Obligations), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee (it being understood and (yagreed that no Control Agreements shall be required pursuant to this Section 5.09(a) filing and recording in respect of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableany Counterparty Accounts). (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by the Borrower or any other Loan Party (including a Person that owns such real property and or which becomes a Loan Party Collateral pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition definition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cExcluded Perfection Assets), shall include promptly (1) and, in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (acquisition or such later date longer period as consented to by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) provide the Secured Parties with (A) title and extended coverage insurance (or, if approved by the Administrative Agent in its sole discretion, a UCC title insurance policy) covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee, (iii) if any such Collateral (other than any Excluded Perfection Assets) consisting of fee-owned real property is required to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because it is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party policy of flood insurance that (1) covers such Collateral and (2) is written in an amount reasonably satisfactory to the Guarantee and Collateral AgreementAdministrative Agent, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit a “life of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement loan” standard flood hazard determination with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) a confirmation that the Borrower or such other Loan Party has received the notice requested pursuant to deliver to Section 208(e)(3) of Regulation H of the Administrative Agent a certificate of such SubsidiaryBoard, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee 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, the Collateral Agent and the Collateral Trustee and (v) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could, or to determine that the operations on any such real property included in such Collateral is in compliance with Environmental Law except to the extent any non-compliance could not, reasonably be expected to result in a material Environmental Liability. (dc) With respect to any new CFC Holding Company Subsidiary (other than an Unrestricted Subsidiary or Foreign Subsidiary an Excluded Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) Section 5.09(c), shall include any existing Subsidiary that becomes a CFC Holding Company ceases to be an Unrestricted Subsidiary, an Excluded Foreign Subsidiary or a Foreign an Excluded Project Subsidiary) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 days following such creation or the date of such acquisition), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or reasonably advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the Collateral Trustee the certificates, if any, representing such Equity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary or an Unrestricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement to, among other things, provide Guarantees of the Guaranteed Obligations hereunder, the Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably requested by the Administrative Agent to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest (except with respect to Pledged Securities, subject to Permitted Liens, and in respect of Pledged Securities, the Permitted Liens in clause (g) of the definition thereof) in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office (but not in any intellectual property offices in any jurisdiction outside the United States), the execution and delivery by all necessary Persons of Control Agreements (other than with respect to any Counterparty Accounts) and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee, if reasonably requested, 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, the Collateral Agent and the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary (other than an Unrestricted Subsidiary or an Excluded Subsidiary pursuant to clause (ii) or (iii) of the definition thereof that is a subsidiary of an Excluded Foreign Subsidiary) created or acquired after the Closing Date by the Borrower or any of its Subsidiaries, promptly (and, in any event, within 25 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of first-tier Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent Collateral Trustee the certificates representing such pledged Capital StockEquity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the Collateral Trustee, desirable to perfect the security interest of the Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and the Collateral Trustee, if reasonably requested, legal opinions (which may be delivered by in-house counsel if admitted in the relevant jurisdiction) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, and (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (and in any event within three (3) Business Days) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement, the Canadian Security Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to evidence that such Loan Party is a Guarantor and to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable in the opinion of the Administrative Agent to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected first priority (except as expressly permitted by Section 7.3) security interest and Lien in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code or PPSA financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Canadian Security Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g)), promptly, to the extent requested by the Administrative Agent, (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate, and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new direct or indirect Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) or any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days at any time after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Closing Date, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement and/or the Canadian Security Agreement, as applicable, as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Domestic Subsidiary that is owned directly or indirectly by any such Loan Party, (ii) deliver to the Administrative Agent such documents and instruments as may be required to grant, perfect, protect and ensure the priority of such security interest, including, but not limited to, the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Domestic Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and/or the Canadian Security Agreement, as applicable, (B) to take such actions as are necessary or reasonably advisable in the opinion of the Administrative Agent to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement and/or the Canadian Security Agreement, as applicable, with respect to such new Domestic Subsidiary, including the filing of Uniform Commercial Code or PPSA financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Canadian Security Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Domestic Subsidiary, substantially in a form reasonably satisfactory to the form of Exhibit CAdministrative Agent, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or First Tier Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Agreement, as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or new First Tier Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of any such CFC Holding Company or new First Tier Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s security interest therein, 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. (e) At the request of the Administrative Agent, each Loan Party shall use commercially reasonable efforts to obtain a landlord’s agreement or bailee letter, as applicable, from the lessor of each leased property or bailee with respect to any warehouse, processor or converter facility or other location where Collateral is stored or located, which agreement or letter shall contain a waiver or subordination of all Liens or claims that the landlord or bailee may assert against the Collateral at that location, and shall otherwise be reasonably satisfactory in form and substance to the Administrative Agent. After the Closing Date, no real property or warehouse space shall be leased by any Loan Party, without the prior written consent of the Administrative Agent (which consent, in the Administrative Agent’s discretion, may be conditioned upon the establishment of Reserves acceptable to the Administrative Agent) or unless and until a reasonably satisfactory landlord agreement or bailee letter, as appropriate, shall first have been obtained with respect to such location. Each Loan Party shall pay and perform its material obligations under all leases and other agreements with respect to each leased location or public warehouse where any Collateral is or may be located.

Appears in 1 contract

Samples: Credit Agreement (Satcon Technology Corp)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property Property described in paragraph (b), (c) or (d) below, below and (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g8.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesParties (in the case of any such Property owned by a Group Member other than an Excluded Foreign Subsidiary), does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and any other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a security interest and Lien in such property Property, in each case, in accordance with the terms and conditions of the applicable Security Documents and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a perfected first priority security interest and Lien in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or any other Security Document or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 5,000,000 or any leasehold interest with annual rental payments in excess of $1,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company8.3(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to a first priority Mortgage or supplemental debenture, in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesParties free and clear of all Liens other than Liens permitted pursuant to clauses (a), a perfected first priority security interest (b), (e), (h), (i), (k) and (m) of Section 8.3 (in the Capital Stock case of any such new Subsidiary that is Property owned by any a Loan Party), covering such real property, (ii) deliver to satisfy the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, requirements set forth in blank, executed Section 7.10(d)(ii) and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement above with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsMortgages, and (iviii) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent. (dc) With respect to any new CFC Holding Company or Material Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) c), shall include any existing Material Subsidiary that ceases to be an Excluded Foreign Subsidiary or any existing Subsidiary that becomes a CFC Holding Company or a Foreign Material Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and each other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest and Lien in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required Group Member, subject to be so pledged) and Liens for Statutory Prior Claims, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and any other Security Document requested by the Collateral Agent to guarantee the Obligations, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest and Lien in the Collateral, subject to Liens expressly permitted by Section 8.3(g), with respect to such new Subsidiary, including the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, any other Security Document or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit H, with appropriate insertions and attachments, and take (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) Within 90 days after the Closing Date (or such other action longer period as the Administrative Collateral Agent deems necessary may agree in its reasonable discretion), Cedar Fair LP or the applicable Loan Party shall deliver: (i) to the Collateral Agent a Mortgage with respect to each Mortgaged Property executed and delivered by a duly authorized officer of each party thereto to be duly recorded or registered in all applicable registry, land titles or other recording offices; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent. (ii) to the Collateral Agent, in respect of each Mortgaged Property a Title Policy or a marked up unconditional commitment for such Title Policy. Each such Title Policy shall (A) be in an amount satisfactory to the Collateral Agent, but in no event in an amount in excess of the fair market value of the applicable Mortgaged Property and fixtures as determined by the Borrower in good faith and reasonably advisable acceptable to perfect the Administrative Collateral Agent, provided that the total value of all Title Policies, in the aggregate, shall not exceed the total amount of the Obligations and, to the extent any Mortgaged Property is located in a jurisdiction which imposes mortgage recording taxes or similar fees, the relevant Mortgage shall not secure an amount in excess of the Title Policy; (B) insure that the Mortgage insured thereby creates a valid first Lien on such Mortgaged Property free and clear of all Liens, except for Liens permitted pursuant to clauses (a), (b), (e), (h), (i), (k) and (m) of Section 8.3; (C) name the Collateral Agent for the benefit of the applicable Secured Parties as the insured thereunder; (D) be in the form of ALTA Loan Policy 2006 (or equivalent policies and, in the case of Mortgaged Property in the State of Michigan, Form 1992); (E) contain such endorsements and affirmative coverage as the Collateral Agent may reasonably request to the extent such endorsements may be issued at commercially reasonable rates, provided, however, that in no event shall a creditor’s security interest therein.rights endorsement be required, and (F) be issued by title companies reasonably satisfactory to the Collateral Agent (including any such title companies acting as co insurers or reinsurers, at the option of the Collateral Agent). The Collateral Agent shall have received evidence satisfactory to it that all premiums in respect of each such Title Policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid;

Appears in 1 contract

Samples: Credit Agreement (Cedar Fair L P)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any U.S. Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property (excluding any Leaseholds) having a value (together with improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by any U.S. Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than Party, promptly (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction, each in form and substance reasonably satisfactory to the Administrative Agent the documents Collateral Agent, as may be necessary to create a valid, perfected first and instruments required subsisting Lien, subject to liens permitted under Section 5.1(k9.3, against such Real Property, (ii) if reasonably requested by the Collateral Agent, provide the Lenders with title and extended coverage insurance covering such interest in Real Property in an amount at least equal to the fair market value of such Real Property (or such lesser amount as shall be specified by the Existing Credit Agreement Collateral Agent) together with title endorsements reasonably requested by the Collateral Agent, (iii) if reasonably requested by the Collateral Agent, provide the Lenders with an ALTA survey thereof (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to subsection (ii) above), together with a surveyor’s certification, (iv) such affidavits, certificates, instruments of indemnification and other items (including any a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the applicable title policy and endorsements referenced in clause (ii) above, (v) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Administrative Collateral Agent may reasonably request, including, without limitation, the enforceability of the applicable Mortgage, (vi) deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable U.S. Loan Party entering into the applicable Mortgage), and in the event any such Real Property or a portion thereof is located within an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Real Property or the applicable portion thereof; and (vii) such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 9.3 against the Real Property covered by the applicable Mortgage. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by any U.S. Loan Party (whichParty, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary Guarantor that is owned by any U.S. Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant U.S. Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor, (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock Collateral described in the Security Agreement with respect to such new Subsidiary Guarantor, including the filing of UCC financing statements in such jurisdictions as may be required by the Security Agreement or by law or as may be requested by the Collateral Agent and (c) to deliver to the Collateral Agent (i) a certificate of such CFC Holding Company or Subsidiary Guarantor, substantially in the form of Exhibit D, with appropriate insertions and attachments and (ii) if reasonably requested by the Collateral Agent, a legal opinion from counsel to such new Subsidiary Guarantor in form and substance satisfactory to the Collateral Agent. (d) With respect to any new Restricted Subsidiary which is an Excluded Foreign Subsidiary that is owned described in clause (i) of the definition of Excluded Foreign Subsidiary (other than an Immaterial Subsidiary) created or acquired after the Closing Date by any U.S. Loan Party, promptly (i) execute and deliver to the Collateral Agent such Loan Party amendments to the Security Agreement as the Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (provided that subject to Liens permitted hereunder) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required to be so pledged) and 100% of the total outstanding non-voting Capital Stock of any such Excluded Foreign Subsidiary and (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant U.S. Loan Party. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any U.S. Loan Party (but excluding any Excluded Foreign Subsidiary and any Non-Guarantor Subsidiary to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person party thereto), promptly (i) execute and take deliver to the Collateral Agent such other action amendments to this Agreement and the Security Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect grant to the Administrative Collateral Agent’s , for the benefit of the Secured Parties, a perfected first priority security interest therein(subject to Liens permitted hereunder) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any U.S. Loan Party, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant U.S. Loan Party and (iii) cause such new Subsidiary Guarantor to deliver to the Collateral Agent a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit D, with appropriate insertions and attachments.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (FTT Holdings, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party of the type that would have constituted Collateral on the Closing Date (other than (wx) any property described in paragraph (b), (c) or (d) below, and (xy) any property subject to a Lien expressly permitted by Section 7.3(g7.3(c), (yd) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and or (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebye)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable Security Documents to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property (in the Capital Stock case of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Collateral other than Pledged Stock, together with undated endorsements, in blank, executed and delivered subject only to Liens permitted by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiarySection 7.3), including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent. (b) With respect to any fee-owned real property, easement property, or leased real property acquired after the Closing Date by any Loan Party (other than (x) any fee-owned real property, easement property, or leased real property (including terminal and storage facilities) having a value (together with improvements thereof) of less than $500,000 (provided that the aggregate value of all such properties shall not exceed $10,000,000 at any time), and (y) any such interest in real property subject to a Lien expressly permitted by Section 7.3(c), (d) or (e)), promptly (i) execute and deliver a first priority (subject only to Customary Permitted Liens) Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such interest in real property, (ii) if reasonably requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such interest in real property in an amount equal to the purchase price of such interest in real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iviii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described aboveopinions, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (dc) With respect to any new CFC Holding Company Restricted Subsidiary that is a Wholly Owned Subsidiary of the Borrower (other than an Immaterial Subsidiary or an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) c), shall include include, for the avoidance of doubt, any existing Restricted Subsidiary that becomes a CFC Holding Company ceases to be an Immaterial Subsidiary or a an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Group Member, (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.Collateral Agreement,

Appears in 1 contract

Samples: Credit Agreement (Blueknight Energy Partners, L.P.)

Additional Collateral, etc. (a) With respect to any real or personal property acquired that any Indenture Party (including any entity that becomes an Indenture Party hereafter pursuant to Section 4.22(c)) acquires after execution and delivery of the Closing Date Collateral Documents that would have been Collateral had it been owned by any Loan such Indenture Party on June 30, 2001 (other than (w) any property described in paragraph (b), ) or paragraph (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(gof this Section), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesHolders, does not have a perfected Lien, the Company shall promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Collateral Trustee deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesHolders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesHolders, a perfected security interest (as provided in any the Collateral Agreement) in such property (with the priority required by the Intercreditor Agreement)property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Trustee. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Date execution and delivery of the Collateral Documents by any Loan Indenture Party, including any entity that becomes an Indenture Party (including a Person that owns such real property and becomes a Loan Party hereafter pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby4.22(c), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent Company shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to a Mortgage (as provided therein) in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured PartiesHolders, a perfected first priority security interest in the Capital Stock of covering such new Subsidiary that is owned by any Loan Partyreal property, (ii) deliver to if requested by the Administrative Agent Collateral Trustee, provide the certificates representing such Capital StockTrustee, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest Holders, with (x) title and extended coverage insurance covering such real property in an amount at least equal to the priority required purchase price of such real property (or such other amount as shall be reasonably specified by the Intercreditor Agreement in Collateral Trustee) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral described Trustee in connection with such Mortgage, each of the Guarantee foregoing in form and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver substance reasonably satisfactory to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsCollateral Trustee, and (iviii) if requested by the Administrative AgentCollateral Trustee, deliver to the Administrative Agent Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentCollateral Trustee. (dc) With respect to any new CFC Holding Restricted Subsidiary (other than an Excluded Foreign Subsidiary, an Insurance Company, a Finance Company or Foreign Subsidiary an Inactive Subsidiary) created or acquired after the Closing Date by any Loan Party execution and delivery of all Collateral Documents (which, for the purposes of this paragraph (d) paragraph, shall include (x) any existing Restricted Subsidiary that ceases to be an Excluded Foreign Subsidiary or an Inactive Subsidiary and (y) any Risk Management Subsidiary that becomes a CFC Holding Wholly Owned Subsidiary of the Company), by the Company or a Foreign Subsidiary)any of its Restricted Subsidiaries, within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent Collateral Trustee deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesHolders, a perfected first priority security interest (as provided in the Collateral Agreement) in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and any of its Subsidiaries, (ii) deliver to the Administrative Agent Collateral Trustee (or a bailee thereof) the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyCompany or such Restricted Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to each of a Subsidiary Guarantee and the Collateral Agreement and (B) to take such actions necessary or advisable to grant to the Collateral Trustee for the benefit of the Holders a perfected security interest in the Collateral described in the Collateral Agreement with respect to such new Restricted Subsidiary, including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Collateral Agreement or by law or as may be reasonably requested by the Collateral Trustee, and (iv) if requested by the Collateral Trustee, deliver to the Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the execution and delivery of the Collateral Documents by the Company or any of its Restricted Subsidiaries (other than any Excluded Foreign Subsidiaries), the Company shall promptly (i) execute and deliver to the Collateral Trustee such amendments to the Collateral Agreement or such other documents as the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Holders, a perfected security interest (as provided in the Collateral Agreement) in the Capital Stock of such new Restricted Subsidiary that is owned by the Company or any of its Restricted Subsidiaries (other than any Excluded Foreign Subsidiaries), provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be required to be so pledged, (ii) deliver to the Collateral Trustee (or a bailee thereof) the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of the Collateral Trustee, desirable to perfect the Administrative Agent’s security interest thereinLien of the Collateral Trustee thereon, and (iii) if requested by the Collateral Trustee, deliver to the Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Trustee.

Appears in 1 contract

Samples: Indenture (Anc Rental Corp)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Borrower or any Loan Party of its Restricted Subsidiaries (other than (wx) any property Property described in paragraph (b), ) or paragraph (c) or (d) belowof this Section, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y7.03(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 500,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Restricted Subsidiaries (other than (i) any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby7.03(g)), within sixty promptly (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (ii) if requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the documents and instruments required under Section 5.1(k) of Collateral Agent, deliver to the Existing Credit Agreement (including any Collateral Agent legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance, and from counsel, reasonably request)satisfactory to the Collateral Agent. (c) With respect to any new Domestic Restricted Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Excluded Foreign Subsidiary (and any Unrestricted Subsidiary that is not redesignated as a CFC Holding Company)Restricted Subsidiary pursuant to Section 6.11), within thirty (30) days after by the creation Borrower or acquisition any of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Restricted Subsidiaries, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by the Borrower or any Loan Partyof its Restricted Subsidiaries, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement (subject to Liens permitted by Section 7.02) with respect to such new Restricted Subsidiary, including including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsCollateral Agent, and (iv) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party of its Restricted Subsidiaries (which, for the purposes of this paragraph (d) shall include other than any existing Subsidiary that becomes a CFC Holding Company or a Excluded Foreign SubsidiarySubsidiaries), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by the Borrower or any such Loan Party of its Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Restricted Subsidiary, as the case may be, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable reasonable opinion of the Collateral Agent, desirable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s security interest therein, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (e) Promptly upon the request of the Collateral Agent, Borrower shall establish a cash management system subject to a depositary agreement satisfactory to the Collateral Agent whereby lock boxes, lock box accounts, and concentration accounts are established and maintained under the sole dominion and control of the Collateral Agent, into which all payments on and proceeds of (i) Private Accounts, and (ii) to the extent permitted and in a manner consistent with all applicable laws and regulations, Government Receivables, shall be deposited and from which all collected funds will be transferred.

Appears in 1 contract

Samples: Credit Agreement (Rotech Healthcare Inc)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Effective Date or, in the case of inventory or equipment, any material Collateral moved after the Effective Date by any Loan Tensar Party (other than (w) any property Collateral described in paragraph clauses (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, TCO does not have a first priority perfected Liensecurity interest, promptly (and, in any event, within 10 days following the date of such acquisition) (i) execute and deliver to TCO and the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as TCO or the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, TCO a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agentto, for the benefit of the Secured Partiesor continue on behalf of, TCO, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Collateral, including (x) entering into landlord waivers and the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by TCO or the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together Collateral consisting of Real Property or any lease interest in Collateral consisting of Real Property with improvements thereof) an annual rent in excess of at least $10,000,000 1,000,000 acquired or leased after the Closing Effective Date by any Loan Party Tensar Party, promptly (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determinesand, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby)any event, within sixty (60) 20 days after following the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest Mortgage in favor.of TCO covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) deliver provide the Secured Parties with title and extended coverage insurance in an amount at least equal to the purchase price of such Real Property (or such other amount as TCO or the Administrative Agent shall reasonably specify), Surveys, and if applicable, flood insurance, lease estoppel certificates, memoranda or amendments, all in accordance with the certificates representing such Capital Stockstandards for deliveries contemplated on the Effective Date, together with undated endorsements, as described in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyAnnex 9 to this Schedule 3, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions TCO and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to TCO and the Administrative AgentAgent and (iv) deliver to TCO and the Administrative Agent a notice identifying, and upon TCO’s or the Administrative Agent request, provide a copy of, the consultant’s reports, environmental site assessments or other documents relied upon by any Tensar Party to determine that any Real Property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a material Environmental Liability or otherwise cause any of the representatives or warranties contained in Section 1.17 of Schedule 2 to be untrue. (dc) With respect to any new CFC Holding Company or Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Effective Date by any Loan Party (which, for the purposes of this paragraph clause (d) c), shall include any existing Subsidiary that becomes a CFC Holding Company ceases to be an Excluded Foreign Subsidiary at any time Schedule 3, Affirmative Covenants after the Effective Date) by Tensar Holdings, Tensar or a Foreign Subsidiary)any of the Subsidiaries, promptly (and, in any event, within sixty (60) 10 days after the following such creation or acquisition the date of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent TCO such amendments to the Guarantee and Collateral Agreement as TCO or the Administrative Agent deems deem necessary or reasonably advisable to grant to the Administrative AgentTCO a valid, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or Foreign new Subsidiary that is are owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Tensar Party, (ii) deliver to TCO the Administrative Agent the certificates certificates, if any, representing such pledged Capital StockEquity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan such Tensar Party, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement (and provide Guarantees of the Obligations) and an Intellectual Property Security Agreement and (B) to take such actions necessary or, in the reasonable opinion of TCO or the Administrative Agent, advisable to grant to TCO a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement and such Intellectual Property Security Agreement with respect to such new Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, such Intellectual Property Security Agreement or by law or as may be reasonably requested by TCO, (iv) deliver to TCO and 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 TCO and the Administrative Agent, and (v) deliver to TCO and the Administrative Agent a notice identifying, and upon TCO’s or the Administrative Agent’s request, provide a copy of, the consultant’s reports, environmental site assessments or other documents relied upon by any Tensar Party to determine that any such real property owned by such Tensar Party does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a material Environmental Liability or that acquisition of such Subsidiary will not cause any of the representations and. warranties contained in Section 1.17 of Schedule 2 to be untrue. (d) With respect to any Excluded Foreign Subsidiary created or acquired after the ‘ Effective Date by Tensar Holdings or any of its Domestic Subsidiaries, promptly (and, in any event, within 10 days following such creation or the date of such acquisition) (i) execute and deliver to TCO and the Administrative Agent such amendments to the Guarantee and Collateral Agreement as TCO or the Administrative Agent deems necessary or advisable in order to grant to TCO a perfected first priority security interest in the Equity Interests in such new Excluded Foreign Subsidiary that is owned by any Tensar Party (provided that in no event shall 66-2/3% or more of the total outstanding voting Equity Interests in any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to TCO the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Tensar Party and take such other action as may be necessary or, in the reasonable opinion of TCO or the Administrative Agent, desirable to perfect the security interest of TCO thereon, (iii) deliver to TCO and the Administrative Agent deems necessary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to TCO and the Administrative Agent, and (iv) deliver to TCO and the Administrative Agent a notice identifying, and upon TCO’s or reasonably advisable to perfect the Administrative Agent’s security interest thereinrequest, provide a copy of, the consultant’s reports, environmental site assessments or other documents relied upon by the Tensar or any other Tensar Party to determine that any real property owned by such Subsidiary does not contain Hazardous Materials of a form or type or in Schedule 3, Affirmative Covenants a quantity or location that could reasonably be expected to result in a material Environmental Liability or that acquisition of such Subsidiary will not cause any of the representations and warranties contained in Section 1.17 of Schedule 2 to be untrue.

Appears in 1 contract

Samples: Working Capital Murabaha Facility Agreement (Tensar Corp)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property Property described in paragraph (b), (c) or (d) below, below and (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g8.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesParties (in the case of any such Property owned by a Group Member other than an Excluded Foreign Subsidiary), does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and any other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a security interest and Lien in such property Property, in each case, in accordance with the terms and conditions of the applicable Security Documents and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a perfected first priority security interest and Lien in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or any other Security Document or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 5,000,000 or any leasehold interest with annual rental payments in excess of $1,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company8.3(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to a first priority Mortgage or supplemental debenture, in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesParties free and clear of all Liens other than Liens permitted pursuant to clauses (a), a perfected first priority security interest (b), (e), (h), (i), (k) and (m) of Section 8.3 (in the Capital Stock case of any such new Subsidiary that is Property owned by any a Loan Party), covering such real property, (ii) deliver to satisfy the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, requirements set forth in blank, executed Section 7.10(d)(ii) and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement above with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsMortgages, and (iviii) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent. (dc) With respect to any new CFC Holding Company or Material Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) c), shall include any existing Material Subsidiary that ceases to be an Excluded Foreign Subsidiary or any existing Subsidiary that becomes a CFC Holding Company or a Foreign Material Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and each other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest and Lien in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required Group Member, subject to be so pledged) and Liens for Statutory Prior Claims, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and any other Security Document requested by the Collateral Agent to guarantee the Obligations, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest and Lien in the Collateral, subject to Liens expressly permitted by Section 8.3(g), with respect to such new Subsidiary, including the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, any other Security Document or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit H, with appropriate insertions and attachments, and take (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) Within 90 days after the Closing Date (or such other action longer period as the Administrative Collateral Agent deems necessary may agree in its reasonable discretion), Cedar Fair LP or reasonably advisable the applicable Loan Party shall deliver: (i) to perfect the Administrative Agent’s security interest thereinCollateral Agent a Mortgage with respect to each Mortgaged Property executed and delivered by a duly authorized officer of each party thereto to be duly recorded or registered in all applicable registry, land titles or other recording offices; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent.

Appears in 1 contract

Samples: Credit Agreement (Cedar Fair L P)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Xxxxx permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property having a fair market value (together with improvements as determined at the time of acquisition thereof) of at least $10,000,000 25,000,000 acquired in fee after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other Party, no later than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) 90 days after the acquisition thereof (or such later date thereof, as may be extended by the Administrative Agent shall agree to in its sole reasonable discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to a Mortgage, in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the Capital Stock of applicable jurisdiction if required by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted under Section 8.02, against such new Subsidiary that is owned by any Loan PartyReal Property, (ii) deliver to provide the Administrative Agent the certificates representing such Capital StockLenders with a Title Policy and a Survey for each Mortgaged Property, together with undated endorsementssuch affidavits, certificates, instruments of indemnification, legal opinions, either (a) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination evidencing that the Mortgaged Property is not in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.flood zone or

Appears in 1 contract

Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)

Additional Collateral, etc. (a) With Subject to the terms of the Intercreditor Agreement, with respect to any property Collateral acquired after the Closing Date or, in the case of inventory or equipment, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not as a result of such acquisition or move have a first priority perfected Liensecurity interest (subject to the Lien priorities set forth in the Intercreditor Agreement and subject to Liens expressly permitted by Section 6.02), promptly (and, in any event, within 20 days following the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as Security Documents substantially similar to those that are delivered to the Administrative First Lien Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) promptly following the Administrative Agent’s or the Collateral Agent’s request, take all actions necessary or reasonably advisable to grant to to, or continue on behalf of, the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to the Lien priorities set forth in any such property (with the priority required by the Intercreditor Agreement)Agreement and subject to Liens expressly permitted by Section 6.02) in such Collateral, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With Subject to the terms of the Intercreditor Agreement, with respect to any (x) fee interest in any real property having a value Collateral consisting of material Real Property (together as determined by Administrative Agent) and (y) lease of Collateral consisting of Real Property with improvements thereof) an annual base rent in excess of at least $10,000,000 2,500,000 after the expiration of any rent abatement or free rent period, acquired or leased after the Closing Date by the Borrower or any other Loan Party and promptly (including a Person that owns and, in any event, within 20 days following the date of such real property and becomes a Loan Party pursuant to this Section 6.10) acquisition, in the case of clause (other than x)) (i) any such real property execute and deliver or, in the case of clause (y), use commercially reasonable efforts to execute and deliver, a first priority (subject to a the Lien priorities set forth in the Intercreditor Agreement and subject to Liens expressly permitted by Section 7.3(g6.02) Mortgage in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such Real Property and complying with the provisions herein and in the Security Documents, (ii) any real property as to which the Administrative Agent determinesprovide or, in its the case of clause (y), use commercially reasonable discretion efforts to provide, the Secured Parties with title and extended coverage insurance in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation an amount at least equal to the value purchase price of the security to be afforded thereby), within sixty (60) days after the acquisition thereof such Real Property (or such later date other amount as the Administrative Agent shall agree reasonably specify), surveys, and if applicable, flood insurance, lease estoppel certificates or, in the event that the Administrative Agent has determined that a recorded memorandum of lease or an amendment of lease is necessary or appropriate in order to in its sole discretionmake any such leased Real Property mortgageable, evidence of such recordation or a copy of such fully executed and binding lease amendment, all as may be reasonably requested by the Administrative Agent, (iii) execute and if requested by the First Lien Administrative Agent, deliver to the Administrative Agent and the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any Collateral Agent legal opinions as relating to the matters described above, which opinions shall be in form and substance substantially similar to those legal opinions that are delivered to the First Lien Administrative Agent and (iv) deliver to the Administrative Agent may a notice identifying, and upon the Administrative Agent’s request and subject to any contractual restrictions contained therein, provide a copy of, the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such Real Property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably request)be expected to result in a material Environmental Liability. Holdings or the Borrower shall use commercially reasonable efforts to deliver to the Administrative Agent estoppel certificates from the landlord with respect to each leased Mortgaged Property, confirming the nonexistence of any default thereunder and certain other information with respect to such lease, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent. (c) With Subject to the terms of the Intercreditor Agreement, with respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a an Excluded Foreign Subsidiary or of a CFC Holding CompanyReceivables Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Excluded Foreign Subsidiary at any time after the Closing Date) by the Borrower or any of the Subsidiaries, promptly (and that is not a CFC Holding Company))and, in any event, within thirty (30) 20 days after the following such creation or acquisition the date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the Guarantee and Collateral Agreement as substantially similar to those that are delivered to the Administrative First Lien Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a valid, perfected first priority security interest (subject to the Lien priorities set forth in the Capital Stock Intercreditor Agreement and subject to Liens expressly permitted by clauses (b), (d) or (s) of Section 6.02) in the Equity Interests in such new Subsidiary that is are owned by the Borrower or any Loan Partyof the Subsidiaries, (ii) deliver to the Administrative Agent First Lien Collateral Agent, as bailee for the certificates Collateral Agent, pursuant to the Intercreditor Agreement, the certificates, if any, representing such Capital StockEquity Interests, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement (and provide Guarantees of the Obligations) and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected first priority security interest with (subject to the priority required by Lien priorities set forth in the Intercreditor Agreement and subject to Liens expressly permitted by Section 6.02) in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office and the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Intellectual Property Security Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to or the Administrative Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the First Lien Administrative Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory substance substantially similar to those legal opinions that are delivered to the First Lien Administrative Agent. (d) With Subject to the terms of the Intercreditor Agreement, with respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date directly by the Borrower or any Loan Party of its Domestic Subsidiaries, promptly (whichand, for the purposes of this paragraph (d) shall include in any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary)event, within sixty (60) 60 days after the following such creation or acquisition the date of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as substantially similar to those that are delivered to the Administrative First Lien Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to the Lien priorities set forth in the Capital Stock Intercreditor Agreement and subject to Liens expressly permitted by clauses (b), (d) or (s) of Section 6.02) in the Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent First Lien Collateral Agent, as bailee for the Collateral Agent, pursuant to the Intercreditor Agreement, the certificates (if applicable) representing such pledged Capital StockEquity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable the Collateral Agent, desirable to perfect the security interest of the Collateral Agent thereon and (iii) if requested by the First Lien Administrative Agent’s security interest therein, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance substantially similar to those legal opinions that are delivered to the First Lien Administrative Agent. (e) Subject to the terms of the Intercreditor Agreement, prior to the Discharge of First Lien Obligations, the requirement of this Section 5.09 to deliver any Collateral to the Collateral Agent shall be deemed satisfied by the delivery of such Collateral to the First Lien Collateral Agent, as bailee for the Collateral Agent pursuant to the Intercreditor Agreement.

Appears in 1 contract

Samples: Second Lien Credit Agreement (True Temper Sports Inc)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Parties (other than (wx) any property described in paragraph (b), ) below and (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralconstituting Excluded Property) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Security Documents or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in under the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer laws of the relevant Loan Party, (iii) cause United States in such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiaryproperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement Security Documents or by law or as may be requested by the Administrative Agent. (i) As soon as possible (and in no event later than 45 days after the delivery of any financial statements under subsection 6.1(a) or (b), for any fiscal period, in the case of Subsidiaries referred to in the following clause (A) which period may be extended by the Administrative Agent from time to time in its discretion), cause (A) all of the Capital Stock (other than Excluded Property) owned directly or indirectly by the Borrower of each of the Borrower’s direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary or Immaterial Subsidiary) to be pledged to the Collateral Agent, pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent, (B) if requested by the Administrative Agent, cause all of the Capital Stock (other than Excluded Property) owned directly or indirectly by the Borrower of any of the Borrower’s direct or indirect Domestic Subsidiaries (other than any Excluded Subsidiary and whether or not such Domestic Subsidiary is an Immaterial Subsidiary) to be pledged to the Collateral Agent pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent, (C) 65% of the voting Capital Stock and all non-voting Capital Stock (other than Excluded Property) of each of the Borrower’s or any of its Domestic Subsidiaries’ direct Foreign Subsidiaries which are not Immaterial Subsidiaries (or such lesser amount as may be owned by the Borrower and its Domestic Subsidiaries), to be pledged to the Collateral Agent pursuant to the Security Documents, for the ratable benefit of the Secured Parties, pursuant to an amendment to the Security Documents reasonably requested by the Administrative Agent and (CD) the Administrative Agent to deliver receive legal opinions of counsel to the Borrower acceptable to the Administrative Agent a certificate covering such matters in respect of such Subsidiarypledges as the Administrative Agent shall reasonably request. (ii) Notwithstanding the foregoing, substantially cause the Capital Stock of any Special Purpose Subsidiary or Subsidiary of the Borrower which acts as a purchaser of receivables for a receivables securitization program of the Borrower and its Domestic Subsidiaries to be pledged as Collateral pursuant to the Security Documents. (c) As soon as possible, cause (i) each of the Borrower’s direct or indirect Domestic Subsidiaries (other than an Excluded Subsidiary or an Immaterial Subsidiary (provided that all Immaterial Subsidiaries excluded from the requirements under this clause (c) shall not at any time contribute in the aggregate more than 5% of Consolidated Assets or more than 5% of Consolidated Revenues) or a joint venture in which not more than 85% of the aggregate Capital Stock of such joint venture is held by the Loan Parties in the aggregate) to become a Guarantor by executing and delivering a joinder or assumption agreement to the Guarantee and Collateral Agreement in a form of Exhibit C, with appropriate insertions and attachments, reasonably requested by the Administrative Agent if such Subsidiary is not then a Guarantor and (ivii) opinions of counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, covering such matters in respect of the Guarantee and Collateral Agreement as the Administrative Agent shall reasonably request to be delivered to the Administrative Agent. (d) With respect to any fee interest in any real property having a fair market value (together with improvements thereof) of at least $1,000,000 acquired after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.3(g)), as soon as reasonably possible and in any event within 30 days after such acquisition (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders, covering such real property, creating a Lien on such real property prior and superior in right to all other Liens on such real property (except Liens permitted by Section 7.3), (ii) if requested by the Administrative Agent, provide the Collateral Agent, for its benefit, for the benefit of the Administrative Agent and for the benefit of the Lenders with (x) a binding pro forma mortgagee’s title insurance policy or marked-up unconditional commitment to issue such insurance covering such real property in an amount equal to the purchase price of such real property (or such lesser amount as shall be reasonably specified by the Administrative Agent) as well as a current map or plat of an as-built survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent Agents 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. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Credit Agreement (Lear Corp)

Additional Collateral, etc. (a) With Subject to and consistent with the Security and Guarantee Principles, with respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly within thirty (30) days of such acquisition (or ninety (90) days in the case of an acquisition by a Foreign Subsidiary that is a Loan Party), or such longer period as agreed to by the Collateral Agent in its sole discretion, (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee and Collateral Agreement applicable Security Documents or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable first priority security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by other applicable law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With Subject to and consistent with the Security and Guarantee Principles, with respect to any fee interest in any real property having Real Property (excluding any Leaseholds) acquired by a Loan Party after the Closing Date, if the aggregate fair market value (together with improvements thereof) of at least all interests in Non-Mortgaged Real Property exceeds $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby)30,000,000, within sixty ninety (6090) days after the acquisition thereof (or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) of the acquisition of such interest, (i) execute and deliver Mortgages, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering the Loan Parties’ interests in Real Property such that the fair market value (together with improvements thereof) of all Non-Mortgaged Real Property does not exceed $30,000,000, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction, each in form and substance reasonably satisfactory to the Administrative Agent the documents Collateral Agent, as may be necessary to create a valid, perfected first and instruments required subsisting Lien, subject to liens permitted under Section 5.1(k9.3, against such Real Property, (ii) provide the Lenders with title and extended coverage insurance covering such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above in an amount at least equal to the fair market value of such Real Property (or such lesser amount as shall be specified by the Existing Credit Agreement Collateral Agent) together with title endorsements reasonably requested by the Collateral Agent, (iii) provide the Lenders with an ALTA survey in respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to subsection (ii) above), together with a surveyor’s certification, (iv) such affidavits, certificates, instruments of indemnification and other items (including any a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the applicable title policy and endorsements referenced in clause (ii) above in respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above, (v) deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Administrative Collateral Agent may reasonably request, including, without limitation, the enforceability, due authorization, execution and delivery of the applicable Mortgage, (vi) deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable Loan Party entering into the applicable Mortgage) subject to an applicable Mortgage pursuant to clause (i) above, and in the event any such Real Property or a portion thereof is located within an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Real Property or the applicable portion thereof; and (vii) such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 9.3 against the Real Property covered by the applicable Mortgage pursuant to clause (i) above. (c) With Subject to and consistent with the Security and Guarantee Principles, with respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Party, within thirty (30) days after the of such creation or acquisition of such new Domestic Subsidiary (or ninety (90) days in the case of a Subsidiary Guarantor that is a Foreign Subsidiary), or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) , (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee Security Documents and Collateral Agreement such comparable documentation or other Security Documents as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor and guarantee the Obligations, (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, or such comparable documentation or other Security Documents requested by the Collateral Agent, as applicable, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the assets (other than Excluded Assets) of such new Subsidiary Guarantor, including the filing of UCC financing statements in such jurisdictions as may be required by the Security Agreement or comparable documentation or by other applicable law or as may be requested by the Collateral Agent and (c) to deliver to the Collateral Agent (i) a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and attachments and (ii) if reasonably requested by the Collateral Agent, a legal opinion from counsel to such new Subsidiary Guarantor in form and substance satisfactory to the Collateral Agent and (iv) if such new Subsidiary Guarantor owns real property with a fair market value of at least $5,000,000, within ninety (90) days of such party becoming a Subsidiary Guarantor (or such longer period as agreed to by the Collateral Agent in its sole discretion), deliver the documents required pursuant to Section 8.8(b) hereof. (d) Subject to and consistent with the Security and Guarantee Principles, with respect to any new Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary (other than an Immaterial Subsidiary) created or acquired after the Closing Date by any Loan Party, within ninety (90) days of such creation or acquisition, (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (entity; provided that in no event shall not more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary shall be required to be so pledged) and , (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party and (iii) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Collateral Agent may request. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Excluded Foreign Subsidiary and any Non-Guarantor Subsidiary to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person party thereto), within thirty (30) days of such creation or acquisition (or such longer period as agreed to by the Collateral Agent in its sole discretion), (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party, (iii) cause such new Subsidiary Guarantor to deliver to the Collateral Agent a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and take attachments (including modifications based on the Security and Guarantee Principles), and (iv) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such other action matters as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinmay request.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Ancestry.com LLC)

Additional Collateral, etc. (a) With respect to any property acquired Within 30 days after the Closing Date formation or acquisition of any Additional Subsidiary Guarantor (or the making of a single investment or a series of related investments having a value (determined by any Loan Party reference to Net Book Value, in the case of an investment of assets) of $250,000,000 or more in the aggregate by the Company or a Subsidiary Guarantor, directly or indirectly, in a Domestic Subsidiary (other than (wan Excluded Subsidiary) that is not a Subsidiary Guarantor or the acquisition of any property described or assets by a Domestic Subsidiary, in paragraph (beach case, that results in such Domestic Subsidiary becoming an Additional Subsidiary Guarantor), the Company shall (cor shall cause the relevant Subsidiary to) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments or supplements to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected security interest in any the Capital Stock of such Additional Subsidiary Guarantor (or Domestic Subsidiary receiving such investment(s) or acquiring such property or assets), (ii) deliver to the Collateral Trustee the certificates, if any, representing such Capital Stock (to the extent constituting “certificated securities” under the applicable UCC), together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the priority required by relevant Loan Party, and (iii) cause such Additional Subsidiary Guarantor (or Domestic Subsidiary receiving such investment(s) or acquiring such property or assets) (A) to become a party to the Intercreditor Security Agreement, the Guarantee and the Collateral Trust Agreement and (B) to take such actions as are necessary to grant to the Collateral Trustee for the benefit of the Secured Parties a valid, perfected security interest in the Collateral described in the Security Agreement with respect to such Additional Subsidiary Guarantor (or Domestic Subsidiary receiving such investment(s) or acquiring such property or assets), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by law. (b) Within 30 days after the Guarantee formation or acquisition of any new Foreign Subsidiary the Capital Stock of which is owned directly by the Company or any Subsidiary Guarantor (other than the Capital Stock of any Excluded Subsidiary or any other Subsidiary to the extent the ownership interest in such Subsidiary has a Net Book Value of $250,000,000 or less), the Company shall (or shall cause the relevant Subsidiary Guarantor to) promptly (i) execute and deliver to the Administrative Agent such amendments or supplements to the Security Agreement as the Collateral Agreement Trustee or the Administrative Agent deems necessary to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected security interest in a portion of the Capital Stock of such new Foreign Subsidiary that is owned by law the Company or such Subsidiary Guarantor (provided that in no event shall more than 66% of the total outstanding Voting Stock of any such new Foreign Subsidiary be required to be so pledged unless the Company in its sole discretion otherwise agrees), and (ii) deliver to the Collateral Trustee the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or the relevant Subsidiary Guarantor, and take such other action as may be reasonably requested by the Collateral Trustee or the Administrative Agent in order to perfect the Collateral Trustee’s security interest therein including the execution and delivery of a pledge agreement governed by the law of the jurisdiction in which such Foreign Subsidiary is domiciled. (c) The Company shall use its commercially reasonable efforts to (i) grant to the Collateral Trustee, for the benefit of the Secured Parties, a security interest in the Capital Stock of any newly-formed or after-acquired joint venture (or a holding company parent thereof) owned directly by the Company or a Subsidiary Guarantor if the amount recorded by the Company or such Subsidiary Guarantor as its investment in such joint venture exceeds $250,000,000 and (yii) in the case of any domestic JV Subsidiary in which the Company directly or indirectly owns at least 80% of the voting or economic interest, to cause such JV Subsidiary to become a Subsidiary Guarantor (in each case, it being understood that such efforts shall not require any economic or other significant concession or result in any adverse tax consequences with respect the terms or structure of such joint venture arrangements). (d) Within 30 days after the occurrence thereof, the Company will notify the Collateral Trustee and the Administrative Agent of any changes to the name, jurisdiction of incorporation or formation or legal form of the Company or any Subsidiary Guarantor. (e) The Company shall use reasonable efforts to deliver to the Administrative Agent no later than 180 days after the Closing Date each of the items described on Schedule 5.7(e) (collectively the “Post-Closing Deliverables”) and each Real Estate Deliverable. If any of the Post-Closing Deliverables or Real Estate Deliverables are not provided within such 180-day period (i) the Borrowing Base will be reduced by the Eligible Value of the Capital Stock for which a Post-Closing Deliverable is outstanding or by the Eligible Value of the Eligible P&E for which a Real Estate Deliverable is outstanding and no Default or Event of Default shall be deemed to have occurred as a result thereof, and (ii) the Applicable Margin shall be increased by 0.25% until such time as all outstanding Post-Closing Deliverables are delivered. (f) The Company shall promptly take such steps as the Administrative Agent may reasonably request in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created in the Collateral. Notwithstanding anything to the contrary herein or in any other Loan Document, neither the Company nor any Subsidiary Guarantor shall be required to perfect the security interests granted by it in any Collateral by any means other than by (a) execution, delivery and recordation of a Mortgage, (b) filings pursuant to the UCC of the relevant State(s) (including with respect to fixtures covered by any Mortgage) or equivalent filings under local jurisdictions to the extent required with respect to the pledge of the Capital Stock of any Foreign Subsidiary, (c) delivery to the Collateral Trustee to be held in its possession of each promissory note listed on Schedule 4.1(g), together with an undated endorsement for each such promissory note executed in blank by a duly authorized officer of the pledgor thereof, and, to the extent certificated and constituting “certificated securities” under the UCC, Capital Stock listed on Schedule 3.13(a) or required to be pledged pursuant to Section 5.7(a), together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, (d) delivery of each other promissory note or certificated Capital Stock and constituting “certificated securities” under the UCC constituting Collateral to the extent such promissory note evidences Indebtedness, or such Capital Stock has a Net Book Value, in excess of $250,000,000, together with an undated endorsement or stock power for each such promissory note or certificate, as applicable, executed in blank by a duly authorized officer of the pledgor thereof and (e) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Officeoffice, as applicablethe case may be, against any registered trademarks, patents and copyrights listed on Schedule 1.1F. (g) By June 30 and December 31 of each year, the Company shall deliver to the Administrative Agent and the Collateral Trustee a notice containing a list of all patents and trademarks registered by the Company or any Loan Party at the United States Patent and Trademark Office since the last such notice was delivered (or in the case of the first notice, since the Closing Date), and shall take such steps as the Administrative Agent may reasonably request in order to perfect the security interests granted in such Collateral by filing against such patents and trademarks at the United States Patent and Trademark Office. (bh) At the request of the Company and notwithstanding Section 9.1(a), the Administrative Agent shall negotiate with the Company in good faith to amend Schedule 1.1B to include a Borrowing Base Amount calculation for any asset of the Company or any Subsidiary that does not have a Borrowing Base Amount at the time such asset becomes Collateral (including the Advance Percentage related thereto and any eligibility or other requirements the Administrative Agent deems reasonably necessary for a determination thereof consistent with the criteria used in determining Borrowing Base Amounts as of the Closing Date). (i) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 20,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g) and clause (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(kh) of the Existing Credit Agreement definition of Permitted Liens or (including any legal opinions as the Administrative Agent may reasonably request). (cy) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cdealership properties), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee a first (and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agentsecond) priority Mortgages, for the benefit in favor of the Secured Parties, a perfected first priority security interest in the Capital Stock of Collateral Trustee covering such new Subsidiary that is owned by any Loan Partyreal property, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative AgentAgent or the Collateral Trustee, provide (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent or the Collateral Trustee) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and Collateral Trustee and (iii) if requested by the Collateral Trustee, deliver to the Administrative Agent Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentCollateral Trustee. (dj) With respect Notwithstanding anything to the contrary herein, in no case shall a Person be required to grant a security interest in any new stock of a CFC Holding Company or Foreign Subsidiary created or acquired after (other than 100% of the Closing Date by nonvoting stock (if any) and 65% of the Voting Stock of a first-tier CFC). (k) If any Loan Party shall obtain an interest in any Commercial Tort Claim (whichas defined in the Security Documents) with a potential value in excess of $100,000,000, for the purposes of this paragraph (d) such Loan Party shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) 30 days after the creation or acquisition of obtaining such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute interest sign and deliver documentation acceptable to the Administrative Agent such amendments granting a security interest to the Guarantee Collateral Trustee under the terms and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit provisions of the Secured Parties, a perfected first priority security interest Security Agreement in the Capital Stock of and to such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinCommercial Tort Claim.

Appears in 1 contract

Samples: Contribution Agreement (Daimler Ag)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Term Loan Obligations Payment Date has not occurred, any ABL Term Loan Priority Collateral as to which the ABL Term Loan Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby thereby) and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Term Loan Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). 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 Second Amendment Effective Date until the date that is (a) if such real property is not located in a “special flood hazard area”, ten (10) Business Days or (b) if such real property is located in a “special flood hazard area”, twenty (20) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Laws, evidence of required flood insurance. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) subject to the Intercreditor Agreement, to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) ), shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent (or, so long as the Term Loan Obligations Payment Date has not occurred, the Term Loan Representative) shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and ), (ii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, Party and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein; provided, that such Loan Party shall be required to provide a local law pledge agreement with respect to such Capital Stock (and local law opinions relating to such local law pledge agreement, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent) as reasonably requested by the Administrative Agent.

Appears in 1 contract

Samples: Abl Credit Agreement (TTM Technologies Inc)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Closing Date or, in the case of inventory or equipment that is part of the Collateral, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 Business Days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property Excluded Perfection Assets and, except with respect to Pledged Securities in the possession of the Collateral Trustee, subject to Permitted Liens, and in respect of Pledged Securities in the possession of the Collateral Trustee, the Permitted Liens set forth in clauses (with h) and (ff) of the priority required by the Intercreditor Agreementdefinition thereof), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee (it being understood and (y) filing and recording agreed that no Control Agreements shall be required pursuant to this paragraph in respect of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableany Counterparty Accounts). (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by the Borrower or any other Loan Party (including a Person that owns such real property and or which becomes a Loan Party Collateral pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition definition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cExcluded Perfection Assets), shall include promptly (1) and, in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (acquisition or such later date longer period as consented to by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) provide the Secured Parties with (A) title and extended coverage insurance (or, if approved by the Administrative Agent in its sole discretion, a UCC title insurance policy) covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee, (iii) if any such Collateral (other than any Excluded Perfection Assets) consisting of fee-owned real property is required to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because it is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party policy of flood insurance that (1) covers such Collateral and (2) is written in an amount reasonably satisfactory to the Guarantee and Collateral AgreementAdministrative Agent, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit a “life of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement loan” standard flood hazard determination with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) a confirmation that the Borrower or such other Loan Party has received the notice requested pursuant to deliver to Section 208(e)(3) of Regulation H of the Administrative Agent a certificate of such SubsidiaryBoard, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee 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, the Collateral Agent and the Collateral Trustee and (v) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could, or to determine that the operations on any such real property included in such Collateral is in compliance with Environmental Law except to the extent any non-compliance could not, reasonably be expected to result in a material Environmental Liability. (dc) With respect to any new CFC Holding Company Subsidiary (other than an Unrestricted Subsidiary or Foreign Subsidiary an Excluded Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Subsidiary that becomes a CFC Holding Company ceases to be an Unrestricted Subsidiary, an Excluded Foreign Subsidiary or a Foreign an Excluded Project Subsidiary) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 days following such creation or the date of such acquisition), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or reasonably advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the Collateral Trustee the certificates, if any, representing such Equity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary or an Unrestricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement to, among other things, provide Guarantees of the Guaranteed Obligations hereunder, the Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably requested by the Administrative Agent to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest (except with respect to Pledged Securities, subject to Permitted Liens, and in respect of Pledged Securities, the Permitted Liens in clause (h) of the definition thereof) in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office (but not in any intellectual property offices in any jurisdiction outside the United States), the execution and delivery by all necessary Persons of Control Agreements (other than with respect to any Counterparty Accounts) and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee, if reasonably requested, 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, the Collateral Agent and the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary (other than an Unrestricted Subsidiary or an Excluded Subsidiary pursuant to clause (ii) or (iii) of the definition thereof that is a subsidiary of an Excluded Foreign Subsidiary) created or acquired after the Closing Date by the Borrower or any of its Subsidiaries, promptly (and, in any event, within 25 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of first-tier Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent Collateral Trustee the certificates representing such pledged Capital StockEquity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the Collateral Trustee, desirable to perfect the security interest of the Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and the Collateral Trustee, if reasonably requested, legal opinions (which may be delivered by in-house counsel if admitted in the relevant jurisdiction) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property Property described in paragraph (b), (c) or (d) below, below and (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g8.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesParties (in the case of any such Property owned by a Group Member other than an Excluded Foreign Subsidiary), does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and any other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a security interest and Lien in such property Property, in each case, in accordance with the terms and conditions of the applicable Security Documents and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the applicable Secured PartiesParties (as set forth above), a perfected first priority security interest and Lien in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or any other Security Document or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 or leasehold interest in any ground lease over real property having a value (together with improvements thereof) of at least $10,000,000, in each case, acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property or ground lease subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company8.3(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to a first priority Mortgage or supplemental debenture, in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesParties free and clear of all Liens other than Liens permitted pursuant to clauses (a), a perfected first priority security interest (b), (e), (h), (i), (k) and (m) of Section 8.3 (in the Capital Stock case of any such new Subsidiary that is Property owned by any a Loan Party), covering such real property or ground lease, as applicable, (ii) deliver to satisfy the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, requirements set forth in blank, executed and delivered by a duly authorized officer of the relevant Loan PartySection 7.10(d)(ii) (iii), (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreementiv), (Bv) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement (vi) with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsMortgages, and (iviii) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such ground leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent. (dc) With respect to any new CFC Holding Company or Material Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) c), shall include any existing Material Subsidiary that ceases to be an Excluded Foreign Subsidiary or any existing Subsidiary that becomes a CFC Holding Company or a Foreign Material Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement and each other Security Document or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest and Lien in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required Group Member, subject to be so pledged) and Liens for Statutory Prior Claims, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and any other Security Document requested by the Collateral Agent to guarantee the Obligations, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest and Lien in the Collateral, subject to Liens expressly permitted by Section 8.3(g), with respect to such new Subsidiary, including the filing of Uniform Commercial Code and Personal Property Security Act financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, any other Security Document or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit H, with appropriate insertions and attachments, and take (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) Within 90 days after the Closing Date (or such other action longer period as the Administrative Collateral Agent deems necessary may agree in its reasonable discretion), Cedar Fair LP or the applicable Loan Party shall deliver: (i) to the Collateral Agent a Mortgage with respect to each Mortgaged Property executed and delivered by a duly authorized officer of each party thereto to be duly recorded or registered in all applicable registry, land titles or other recording offices; provided, however, the U.S. Borrower or the applicable Loan Party shall only be obligated to deliver a Leasehold Mortgage with respect to such ground leasehold interests upon receipt of any required landlord consent to such Leasehold Mortgage after using commercially reasonable efforts within such 90 days to obtain such consent. (ii) to the Collateral Agent, in respect of each Mortgaged Property a Title Policy or a marked up unconditional commitment for such Title Policy. Each such Title Policy shall (A) be in an amount satisfactory to the Collateral Agent, but in no event in an amount in excess of the fair market value of the applicable Mortgaged Property and fixtures as determined by the Borrower in good faith and reasonably advisable acceptable to perfect the Administrative Collateral Agent, provided that the total value of all Title Policies, in the aggregate, shall not exceed the total amount of the Obligations and, to the extent any Mortgaged Property is located in a jurisdiction which imposes mortgage recording taxes or similar fees, the relevant Mortgage shall not secure an amount in excess of the Title Policy; (B) insure that the Mortgage insured thereby creates a valid first Lien on such Mortgaged Property free and clear of all Liens, except for Liens permitted pursuant to clauses (a), (b), (e), (h), (i), (k) and (m) of Section 8.3 or any Liens consented to by the Collateral Agent; (C) name the Collateral Agent for the benefit of the applicable Secured Parties as the insured thereunder; (D) be in the form of ALTA Loan Policy 2006 (or equivalent policies and, in the case of Mortgaged Property in the State of Michigan, Form 1992); (E) contain such endorsements and affirmative coverage as the Collateral Agent may reasonably request to the extent such endorsements may be issued at commercially reasonable rates, provided, however, that in no event shall a creditor’s security interest therein.rights endorsement be required, and (F) be issued by title companies reasonably satisfactory to the Collateral Agent (including any such title companies acting as co-insurers or reinsurers, at the option of the Collateral Agent). The Collateral Agent shall have received evidence satisfactory to it that all premiums in respect of each such Title Policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid;

Appears in 1 contract

Samples: Credit Agreement (Cedar Fair L P)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) property acquired by any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyExcluded Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing provided, that such actions with respect to motor vehicles and recording of intellectual property security agreements with cash collateral need only be taken if and to the United States Patent and Trademark Office and extent the United States Copyright Office, as applicableAdministrative Agent reasonably requests. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 2,000,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (z) real property acquired by any Excluded Foreign Subsidiary), promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) any if reasonably requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such mortgage or deed of trust, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party the Borrower (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation Borrower or acquisition any of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any Loan Partyof the Subsidiary Guarantors, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) 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. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a other than an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Borrower or any such Loan Party of its Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s 's security interest therein, 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.

Appears in 1 contract

Samples: Credit Agreement (Dames & Moore Group)

Additional Collateral, etc. (a) With Except during a Collateral Release Period, with respect to any property Collateral acquired after the Closing Date by any Loan Party (other than (w) or with respect to any property described or asset which becomes Collateral pursuant to the definition thereof after the Closing Date, promptly (and, in paragraph (b)any event, (cA) with respect to any Deposit Account, Securities Account or (d) belowCommodities Account, (x) any property subject within the time period set forth in the second paragraph of Section 5.10 applicable to a Lien expressly permitted by Section 7.3(g)such Deposit Account, (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby Securities Account or Commodities Account and (zB) with respect to any other Collateral or any other property (oror asset which becomes Collateral, so long within 20 Business Days following the date of such acquisition or designation, or in each case, such longer period as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as consented to which by the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebysole discretion) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property Excluded Perfection Assets and, except with respect to Pledged Securities in the possession of the Collateral Trustee, subject to Permitted Liens, and in respect of Pledged Securities in the possession of the Collateral Trustee, the Permitted Liens set forth in clause (g) of the definition thereof and with the priority required by the Intercreditor Agreementrespect to any other Priority Lien Obligations), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver the Collateral Agent or the Collateral Trustee (it being understood and agreed that no Control Agreements shall be required pursuant to this Section 5.09(a) in respect of any Counterparty Accounts). Notwithstanding anything set forth herein or in any other Loan Document to the Administrative Agent legal opinions relating contrary, this Section 5.09(a) shall not apply to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or Intellectual Property Collateral acquired after the Closing Date by or with respect to any Loan Party (which, for property or asset which becomes Intellectual Property Collateral pursuant to the purposes definition of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days Collateral after the creation or acquisition of Closing Date (it being agreed and understood that such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent Intellectual Property Collateral shall agree to in its sole discretion) (i) execute and deliver be subject to the Administrative Agent such amendments to applicable provisions of the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinAgreement).

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With Subject to and consistent with the Security and Guarantee Principles, with respect to any property (other than Excluded Assets) acquired (including any acquisition pursuant to Division) at any time after the Closing ClosingAmendment No. 3 Effective Date by any Loan Party (other than (w) any property described in paragraph (b), ) or (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, will promptly (and in no event later than ninety (90) days (or such longer period as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement Security Documents or execute all such other documents or do all such acts as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in any such property (with the priority required by the Intercreditor Agreement)property, including (xwhere applicable) the filing of Uniform Commercial Code UCC financing statements in such United States jurisdictions as may be required by the Guarantee and Collateral U.S. Security Agreement, the U.S. Holdings Pledge Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With Subject to and consistent with the Security and Guarantee Principles, with respect to any fee interest in any real property Real Property (excluding any Leaseholds) having a value (together with improvements thereof) of at least $10,000,000 (to the extent of a type included in the definition of “Collateral”) acquired after the Closing Date by any Loan Party Party, will use commercially reasonable efforts to promptly (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty no event later than ninety (6090) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions longer period as the Administrative Agent may agree)) (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with, if applicable, a corresponding UCC fixture filing for filing in the applicable United States jurisdiction (or, if relevant, equivalent form in any non-United States jurisdiction), each in form and substance reasonably satisfactory to the Collateral Agent, as may be necessary to create a valid, perfected first and subsisting Lien, subject to liens permitted under Section 9.7, against such Real Property, (ii) if reasonably requested by the Collateral Agent, provide the Lenders with title and extended coverage insurance covering such interest in Real Property in an amount at least equal to the fair market value of such Real Property (or such lesser amount as shall be specified by the Collateral Agent) together with title endorsements reasonably requested by the Collateral Agent, (iii) if reasonably requested by the Collateral Agent, in the case of any Real Property located in the United States, provide the Lenders with an ALTA survey thereof (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to clause (ii) above), together with a surveyor’s certification, (iv) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the applicable title policy and endorsements referenced in clause (ii) above, (v) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Collateral Agent may reasonably request, including, without limitation, the enforceability of the applicable Mortgage, (vi) in the case of Real Property located in the United States, deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such parcel of Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable Loan Party entering into the applicable Mortgage), and in the event any such Real Property or a portion thereof is located within an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Real Property or the applicable portion thereof, and (vii) such other information, documentation (including, but not limited to, existing appraisals, existing environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 9.7 against the Real Property covered by the applicable Mortgage. (c) With Subject to and consistent with the Security and Guarantee Principles, with respect to (A) any new Domestic Restricted Subsidiary (other than any Immaterial a Non-Guarantor Subsidiary) that is established, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing ClosingAmendment No. 3 Effective Date by any Loan Party (which, for or(including upon the purposes consummation of this paragraph (ca Division), shall include (1B) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Restricted Subsidiary of a Foreign Subsidiary Loan Party (regardless of when established, created or a CFC Holding Company and (2acquired) any existing Subsidiary that ceases to be an Immaterial a Non-Guarantor Subsidiary or (C) any Restricted Subsidiary that becomes a Co-Borrower, will promptly (and that is not a CFC Holding Company)), within thirty in no event later than ninety (3090) days after the creation or acquisition of such new Domestic Subsidiary Guarantor Trigger Date (or such later date longer period as the Administrative Agent shall agree to in its sole discretionmay agree)) (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Agreement Security Documents or execute all such documents or do all such acts as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary (to the extent of a type included in the definition of “Collateral”) that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Restricted Subsidiary (Aa) to execute and deliver to the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor andor Co-Borrower, (y) a joinder agreement to the Guarantee and Collateral U.S. Security Agreement, substantially in the form annexed thereto, or additional Foreign Security Documents, to the extent applicable, substantially in the same form as the Foreign Security Documents governed by the laws of such Restricted Subsidiary’s jurisdiction of organization and executed and delivered by other Loan Parties pursuant to this Agreement and (Bz) a counterpart of the Global Intercompany Note, (b) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Collateral described in the U.S. Security Documents or Foreign Security Documents, as applicable, with respect to such Restricted Subsidiary, including (where applicable) the filing of UCC financing statements in such jurisdictions as may be required by the U.S. Security Agreement, the U.S. Holdings Pledge Agreement or such other filings as may be required by U.S. Security Documents, the Foreign Security Documents or by law or as may be requested by the Collateral Agent and (c) to deliver to the Collateral Agent (i) a certificate of such Restricted Subsidiary, substantially in the form of Exhibit D, with appropriate insertions and attachments and (ii) if reasonably requested by the Collateral Agent, a legal opinion from counsel to such Restricted Subsidiary in form and substance satisfactory to the Collateral Agent. (d) Subject to and consistent with the Security and Guarantee Principles, with respect to any Non-Guarantor Subsidiary established, created or acquired after the ClosingAmendment No. 3 Effective Date by any Loan Party (including upon the consummation of a Division) to the extent the Capital Stock of such CFC Holding Company entity is not an Excluded Asset will use commercially reasonable efforts to promptly (and in no event later than ninety (90) days (or such longer period as the Administrative Agent may agree)) (i) execute and deliver to the Collateral Agent such amendments to this Agreement, any U.S. Security Document or any Foreign Security Document as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) Party, and (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital StockStock (if any), together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan PartyParty and (iii) cause such Non-Guarantor Subsidiary to deliver to the Collateral Agent a certificate of such Non-Guarantor Subsidiary, substantially in the form of Exhibit D, with appropriate insertions and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinattachments.

Appears in 1 contract

Samples: Amendment No. 3 (Informatica Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Original Closing Date by any Loan Party Group Member (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y8.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) property acquired by any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralExcluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Amended and Restated Guarantee and Collateral Agreement or such other documents as the Administrative Agent or the Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in any such property (with if and to the priority required by the Intercreditor Agreement)extent that a security interest may be perfected under applicable law, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Amended and Restated Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 500,000 acquired after the Original Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g8.3(g) and (y) real property acquired by any Excluded Foreign Subsidiary), promptly (i) execute and deliver a first priority Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) any real property as to which if requested by the Administrative Agent determinesor the Collateral Agent, provide the Secured Parties with (x) title and extended coverage insurance covering such real property in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation an amount at least equal to the value purchase price of the security to be afforded thereby), within sixty (60) days after the acquisition thereof such real property (or such later date other amount as shall be reasonably specified by the Administrative Agent shall agree or the Collateral Agent) and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent or the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to in its sole discretionthe Administrative Agent or the Collateral Agent, as applicable and (iii) execute and if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent or the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any Collateral Agent, as applicable, legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)and the Collateral Agent, as applicable. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Original Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Amended and Restated Guarantee and Collateral Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Amended and Restated Guarantee and Collateral Agreement, (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Amended and Restated Guarantee and Collateral Agreement with respect to such new SubsidiarySubsidiary if and to the extent that a security interest may be perfected under applicable law, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Amended and Restated Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent or the Collateral Agent and (C) to deliver to the Administrative Collateral Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral 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 and the Collateral Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Original Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or a is an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Amended and Restated Guarantee and Collateral Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, as the case may be, and take such other action as may be reasonably necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable the Collateral Agent, desirable to perfect the Administrative Collateral Agent’s security interest thereintherein if and to the extent that a security interest may be perfected under applicable law, and (iii) if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent or the Collateral 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 or the Collateral Agent.

Appears in 1 contract

Samples: Credit Agreement (Muzak Holdings LLC)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Restatement Date by any Loan Party Group Member and not subject to the Senior Current Asset Security Agreement (other than (wx) any property described in paragraph (b), ) or (c) or below and (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g6.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion Inventory and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Receivables Security Agent, for the benefit of the Secured PartiesAgents and Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Inventory and Receivables Security Agent such amendments to the Guarantee and Collateral Agreement Documents or such other documents as the Administrative Inventory and Receivables Security Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a third priority security interest in such property (ranking after the security interest granted in such property to the Collateral Agent for the benefit of the Term Loan Lenders and the holders of Series A Notes) and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected third priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement Documents or by law or as may be requested by the Administrative Agent Inventory and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableReceivables Security Agent. (b) With respect to any (i) of the leasehold interests in real property set forth on Disclosure Schedule 5.7(b) (the “Leasehold Mortgaged Properties”) hereto where the landlord under the applicable lease consents to the imposition of a mortgage Lien on such leasehold interests, or (ii) fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 250,000 acquired after the Closing Restatement Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company6.3(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver a third priority Mortgage (ranking after any mortgage securing the obligations of any Group Member in respect of Term Loan Obligations and obligations owed by the Company with respect to the Administrative Agent such amendments to Series A Notes), in favor of the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected first priority security interest in the Capital Stock of covering such new Subsidiary that is owned by any Loan Partyreal property, (ii) deliver to if requested by the Administrative Agent Inventory and Receivables Security Agent, provide the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with Agents and Lenders (x) title and extended coverage insurance covering such real property in an amount at least equal to the priority required purchase price of such real property (or such other amount as shall be reasonably specified by the Intercreditor Agreement in the Collateral described in the Guarantee Inventory and Collateral Agreement Receivables Security Agent) as well as a current ALTA survey thereof, together with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Guarantee Inventory and Collateral Agreement or by law or as may be requested by Receivables Security Agent in connection with such Mortgage, each of the Administrative foregoing in form and substance reasonably satisfactory to the Inventory and Receivables Security Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iviii) if requested by the Administrative Inventory and Receivables Security Agent, deliver to the Administrative Collateral Agent for the benefit of the Agents and Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Inventory and Receivables Security Agent. With respect to each of the Leasehold Mortgaged Properties, the Borrower shall use commercially reasonable efforts to obtain the consent of the applicable landlord to the Lien of a Mortgage within 30 days following the Restatement Date. (dc) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Restatement Date by any Loan Party (which, for Group Member or to the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company extent either Consumers Mining or a Foreign Subsidiary), within sixty (60) days Monessen Southwestern Railway ceases after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree Restatement Date to in its sole discretion) be an Inactive Subsidiary, promptly (i) execute and deliver to the Administrative Agent Collateral Agent, such amendments to the Guarantee and Collateral Agreement Documents as the Administrative Inventory and Receivables Security Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected first third priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any Group Member (ranking after any security interest in such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock securing the obligations of any such CFC Holding Group Member in respect of Term Loan Obligations and obligations owed by the Company or Foreign Subsidiary be required with respect to be so pledged) and the Series A Notes), (ii) deliver to the Administrative Agent Collateral Agent, the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such Subsidiary (A) to execute a Guarantee Agreement with respect to the Obligations and to become a party to such other Collateral Documents as the Inventory and Receivables Security Agent deems appropriate, (B) to take such actions necessary or advisable to grant to the Collateral Agent or the Inventory and Receivables Security Agent, for the benefit of the Agents and Lenders a perfected security interest in the Collateral described in the Collateral Documents with respect to such Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Collateral Agent and (C) to deliver to the Inventory and Receivables Security Agent a certificate of such Subsidiary, substantially in the form of Exhibit E, with appropriate insertions and attachments, and take (iv) if requested by the Inventory and Receivables Security Agent, deliver to the Collateral Agent for the benefit of the Agents and Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Inventory and Receivables Security Agent. (d) With respect to any joint venture (including, without limitation, the Coke Plant Joint Venture) entered into after the Restatement Date by any Group Member, execute and deliver to the Collateral Agent such other action Collateral Documents as the Administrative Inventory and Receivables Security Agent deems necessary or reasonably advisable to perfect grant to the Administrative Collateral Agent’s , for the benefit of the Agents and Lenders, a perfected third priority security interest thereinin the Capital Stock of such joint venture that is owned by any Group Member (ranking after any security interest in such Capital Stock securing the obligations of any Group Member in respect of Term Loan Obligations and obligations owed by the Company with respect to the Series A Notes), provided, that any pledge agreement executed and delivered by any Group Member in connection herewith, with respect to its Capital Stock in such joint venture, shall be on terms substantially similar to those JV Pledge Agreements previously delivered hereunder.

Appears in 1 contract

Samples: Revolving Loan Agreement (Wheeling Pittsburgh Corp /De/)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Effective Date by any Loan Party Group Member (other than (wx) any property described in paragraph (b), (c) or (dc) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y6.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long included as collateral under the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralSenior Current Asset Security Agreement) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesAdministrative Agent and the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAdministrative Agent and the Lenders, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAdministrative Agent and the Lenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably required by the Guarantee and Collateral Agreement Security Documents or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any (i) of the leasehold interests in real property set forth on Schedule 5.12(b) (the “Leasehold Mortgaged Properties”) hereto where the landlord under the applicable lease consents to the imposition of a mortgage Lien on such leasehold interests, or (ii) fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 250,000 acquired after the Closing Effective Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g6.3(g)), promptly (i) execute and deliver a first priority Mortgage (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed of trust is to be recorded), in favor of the Collateral Agent, for the benefit of the Administrative Agent and the Lenders, covering such real property in form and substance reasonably satisfactory to the Administrative Agent, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Effective Date by any Loan Party (whichGroup Member and each of Consumers Mining, for Monessen Southwestern Railway or WP Coal which after the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that Effective Date ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Inactive Subsidiary, within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAdministrative Agent and the Lenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to execute a guarantee agreement with respect to the Obligations substantially in the form of the Affiliate Guarantee Agreement, (B) to become a party to the Guarantee Security Agreement and Collateral Junior Current Asset Security Agreement, (BC) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties Administrative Agent and the Lenders a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee Security Agreement and a perfected second priority security interest in the Collateral described in the Junior Current Asset Security Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee Security Agreement and Collateral Junior Current Asset Security Agreement or by law or as may be reasonably requested by the Administrative Agent and (CD) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CB, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after joint venture (including, without limitation, the Closing Date by Coke Plant Joint Venture) any Loan Party (whichGroup Member, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) promptly execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement Security Documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAdministrative Agent and the Lenders, a perfected first priority security interest (or to affirm the attachment and perfection of any such security interest) in (i) the Capital Stock of such CFC Holding Company or Foreign Subsidiary joint venture that is owned by any such Loan Party (provided Group Member, provided, that in no event shall more than 65% of the total outstanding voting any pledge agreement executed and delivered by any Group Member with respect to its Capital Stock of any in such CFC Holding Company or Foreign Subsidiary joint venture, shall be required on terms substantially similar to be so pledged) those JV Pledge Agreements previously delivered hereunder, and (ii) deliver to any other form of Collateral (as defined in the Administrative Agent the certificates representing Security Agreement) associated with such pledged Capital Stock, together with undated stock powers, joint venture and in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinwhich any Grantor has an interest.

Appears in 1 contract

Samples: Term Loan Agreement (Esmark INC)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) Subsidiary Guarantor as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected LienLien (except as expressly set forth in the applicable Security Document), promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a (except as expressly set forth in the applicable Security Document) a perfected security interest in any such property (with the priority required by the Intercreditor Agreement)Required Priority in such property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 3,000,000 acquired after the Closing Date by the Borrower or any Loan Party Subsidiary Guarantor promptly (including i) execute, acknowledge and deliver a Person that owns Mortgage in favor of the Administrative Agent, for the benefit of the Lenders with the Required Priority, in an amount no greater than 125% of the purchase price if the property is located in a state with mortgage recording tax covering such real property, (ii) if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property and becomes a Loan Party pursuant in an amount at least equal to this Section 6.10) (other than (i) any the purchase price of such real property subject to as well as a Lien expressly permitted by Section 7.3(g) current ALTA survey thereof, together with a surveyor's certificate and (iiy) any real property as to which consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding CompanySubsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be a Foreign Subsidiary or an Immaterial Subsidiary (and that is not a CFC Holding Company)Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest with the Required Priority in the all Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers or equivalents, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a (to the extent provided in the Guarantee and Collateral Agreement) perfected security interest with the priority required by the Intercreditor Agreement Required Priority in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) The Borrower will not issue or sell any of its Capital Stock (i) to any Person other than Holdings, (ii) unless such Capital Stock is issued subject to the security interest granted by the Guarantee and Collateral Agreement or (iii) in any form except as a certificated security delivered at or substantially concurrent with issuance to the Administrative Agent and pledged pursuant to the Guarantee and Collateral Agreement. (e) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or is a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments or supplements to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a (except as expressly set forth in the Guarantee and Collateral Agreement) perfected first priority security interest with the Required Priority in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powerspowers or equivalents, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, as the case may be, and take such other action as may be reasonably necessary or, in the reasonable opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s 's security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Del Laboratories Inc)

Additional Collateral, etc. (a) With respect to any property Property (other than Vehicles, cash, Cash Equivalents, Foreign Cash Equivalents and other assets expressly excluded from the Collateral or excluded from the requirement that a Lien is perfected on such Property pursuant to the Second Lien Security Documents) located in the United States acquired after the Closing Date by any Loan Party (other than (wx) any interests in real property and any Property described in paragraph (b)) of this Section 5.8, (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y6.2(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property Instruments, Certificated Securities, Securities and Chattel Paper, which are referred to in the last sentence of this paragraph (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Parties does not have a perfected Lien, promptly promptly, but in any case within 30 days, (i) give notice of such Property to the Collateral Agent and execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable requests to grant to the Administrative Agent, Collateral Agent for the benefit of the Secured Parties a security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Second Lien Security Documents) in such Property (with respect to Property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, has a perfected security interest in any such property (with Property as of the priority required by the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and Collateral Agent. Any Instrument, Certificated Security (y) filing and recording other than in respect of intellectual property security agreements with the United States Patent and Trademark Office and Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $100,000 shall be promptly delivered to the United States Copyright Officecollateral agent under the First Lien Loan Documents or the Collateral Agent, as applicable, pursuant to the Intercreditor Agreement indorsed in a manner reasonably satisfactory to the Collateral Agent to be held as Collateral pursuant to the relevant Second Lien Security Document. (b) With respect to any fee interest in any real property located in the United States having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g6.2(g)) within 30 days of such acquisition, (i) give notice of such acquisition to the Collateral Agent and, if requested by the Collateral Agent execute and deliver a Mortgage (iisubject to Liens permitted by Section 6.2) any in favor of the Collateral Agent for the benefit of the Secured Parties, covering such real property as to which (provided that no Mortgage nor survey shall be obtained if the Administrative Collateral Agent determines, in its reasonable discretion and reasonably determines in consultation with the Borrower, Borrower that the cost costs of obtaining a security interest therein is such Mortgage or survey are excessive in relation to the value of the security to be afforded thereby), within sixty (60ii) days after if reasonably requested by the acquisition thereof Collateral Agent (A) provide the Lenders with a lenders’ title insurance policy with extended coverage covering such real property in an amount at least equal to the purchase price of such real property (or such later date other amount as shall be reasonably specified by the Administrative Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate unless the title insurance policy referred to above shall not contain an exception for any matter shown by a survey (except to the extent an existing survey has been provided and specifically incorporated into such title insurance policy), each in form and substance reasonably satisfactory to the Collateral Agent, and (B) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary by the Collateral Agent, in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent shall agree to in its sole discretionand (iii) execute and if requested by the Collateral Agent deliver to the Administrative Collateral Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance, and from counsel, reasonably request)satisfactory to the Collateral Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any that is a Material Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1x) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a previously non-wholly owned Domestic Subsidiary that becomes wholly owned and is not a CFC Holding Company Material Subsidiary and (y) any Domestic Subsidiary that was previously an Immaterial Subsidiary and becomes a Material Subsidiary or a Subsidiary of which is a Foreign Subsidiary or a CFC Holding Company and (2Material Subsidiary, as applicable) by any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Loan Party, promptly, but in any case within thirty (30) 30 days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, Collateral Agent for the benefit of the Secured Parties, Parties a perfected first priority security interest (to the extent required by the Second Lien Security Documents) in the Capital Stock of such new Subsidiary that is owned by any such Loan Party, (ii) deliver to the Administrative Agent collateral agent under the certificates First Lien Loan Documents or the Collateral Agent, as applicable, pursuant to the Intercreditor Agreement the certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic Subsidiary (and is not an Immaterial Subsidiary), cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected security interest with (to the priority extent required by the Intercreditor Agreement Second Lien Security Documents) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiarySubsidiary (to the extent the Collateral Agent, including for the benefit of the Secured Parties, has a perfected security interest in the same type of Collateral as of the Closing Date), including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Collateral Agent. (d) With respect to any new CFC Holding Company Foreign Subsidiary directly owned by Holdings, the Borrower or Foreign a Domestic Subsidiary that is a Material Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Foreign Subsidiary directly owned by Holdings, the Borrower or a Domestic Subsidiary that previously was an Immaterial Subsidiary and becomes a CFC Holding Company Material Subsidiary or a Foreign Subsidiary which is a Material Subsidiary), as applicable) by any Loan Party, promptly, but in any case within sixty (60) 30 days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Second Lien Security Documents) in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) ), and (ii) to the extent permitted by applicable law, deliver to the Administrative Agent collateral agent under the certificates First Lien Loan Documents or the Collateral Agent, as applicable, pursuant to the Intercreditor Agreement the certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, necessary to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything to the contrary in any Second Lien Loan Document, (a) this Section 5.8 shall not apply with respect to any collateral to the extent the Administrative Agent deems necessary or has reasonably advisable determined that the value of such collateral to perfect which this Section 5.8 would otherwise apply is insufficient to justify the Administrative Agent’s difficulty, time and/or expense of obtaining a perfected Lien therefrom and (b) any such security interest thereinor Lien shall be subject to the relevant requirements of the Intercreditor Agreement.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Vertrue Inc)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property acquired after the Closing Date by any Loan Party (other than (w) any motor vehicles, or any tangible personal property described in paragraph (b), (c) evidenced by a title certificate or (d) below, (x) any other type of property subject to a Lien expressly permitted excluded by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralSecurity Documents) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee Guaranty and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest under U.S. law in such property pursuant to the terms, conditions and limitations set forth in the Guaranty and Collateral Agreement, subject to Liens permitted under Section 7.3, and (ii) take all actions necessary or reasonably advisable requested by the Collateral Agent to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest under U.S. law in any such property (with pursuant to the priority required by terms, conditions and limitations set forth in the Guaranty and Collateral Agreement and, to the extent applicable, the OnCure Assets Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably required by the Guarantee Guaranty and Collateral Agreement or by under U.S. law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the date that is 180 days after the Closing Date by any Loan Party (including other than any such property subject, or to be subject to, a Person that owns Lien permitted by clause (7) of the definition of Permitted Liens or a mortgage permitted by clause (13) of the definition of Permitted Liens (but only for so long as such mortgage remains in place)), on a quarterly basis reasonably promptly within 30 days after delivery of the financial statements delivered pursuant to Section 6.1(a) or (b) execute and deliver a first priority mortgage or deed of trust subject to the Liens permitted by such mortgage or deed of trust and, to the extent applicable, the OnCure Assets Intercreditor Agreement, in a form substantially similar to the Mortgages on the Mortgaged Properties and otherwise reasonably satisfactory to the Administrative Agent, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property and becomes recorded by a nationally recognized title insurance company in such manner and in such place as is required by law to establish, perfect, preserve and protect the Lien in favor of the Collateral Agent required to be granted pursuant to the Mortgage and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party pursuant to this Section 6.10) (other than (i) any shall otherwise take such real property subject to a Lien expressly permitted by Section 7.3(g) actions and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation execute and/or deliver to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or Collateral Agent such later date documents as the Administrative Agent shall agree 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 its sole discretion) execute form and deliver substance reasonably satisfactory to the Administrative Agent the Agent) and other documents and instruments required under Section 5.1(k) of the Existing type described in Section 6.14 of the Original Credit Agreement (including any legal opinions as the Administrative Agent may reasonably requestin respect of such Mortgage). (c) With respect to any new Domestic Restricted Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) or any existing Unrestricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Restricted Subsidiary or any Restricted Subsidiary that is not a CFC Holding Company or a newly meets the requirements of the definition of Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Guarantor, within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee Guaranty and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest subject to Liens permitted pursuant to Section 7.3 and, to the extent applicable, the OnCure Assets Intercreditor Agreement in the Capital Stock of such new Subsidiary that is owned by any Loan PartyParty (provided such security interest shall be limited (A) in the case of a Foreign Subsidiary directly owned by a Domestic Subsidiary, to 65% of such Capital Stock in such Foreign Subsidiary and (B) in the case of any other Foreign Subsidiary or any Insurance Subsidiary or Immaterial Subsidiary, to 0% of such Capital Stock in such Foreign Subsidiary, Insurance Subsidiary or Immaterial Subsidiary), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (unless such Subsidiary is a Foreign Subsidiary, an Insurance Subsidiary, an Immaterial Subsidiary, a Regulated Entity or a Non-Wholly-Owned Subsidiary or otherwise excluded pursuant to the definition of a Subsidiary Guarantor) (A) to become a party to the Guarantee Guaranty and Collateral Agreement, (B) to take such actions necessary or and reasonably advisable requested by the Administrative Agent to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with subject to the priority required by Liens permitted under Section 7.3 and, to the extent applicable, the OnCure Assets Intercreditor Agreement in the Collateral described in the Guarantee Guaranty and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee Guaranty and Collateral Agreement or by U.S. law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CI to the Guaranty and Collateral Agreement or in such other form as may be reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments, and (iv) 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. ; provided that (d1) With the Borrower shall not be required to take, or cause any Subsidiary to take, the actions required by this paragraph (c) with respect to any new CFC Holding Company such Subsidiary prior to the delivery of financial statements delivered pursuant to Section 6.1(a) or Foreign (b) for the fiscal quarter of the Borrower during which such Subsidiary was created or acquired after unless (x) the Closing Date aggregate amount of Investments made by any Loan Party Borrower and the Subsidiaries in all such Subsidiaries exceeds $10,000,000 prior to the end of such fiscal quarter or (which, for y) an Event of Default has occurred and is continuing and (2) the purposes of Borrower shall not be required to provide the legal opinions required by this paragraph (dc) shall include any existing if the applicable Subsidiary that becomes (on a CFC Holding Company consolidated basis) accounts for less than 1% of the assets, revenues or Consolidated EBITDA of the Borrower, in each case on a Foreign Subsidiary)pro forma basis as of the end of and for the four fiscal quarters most recently ended for which financial statements have been delivered under Section 6.1(a) or (b) or, within sixty (60) days after if prior to the creation or acquisition first delivery date for such financial statements, for which financial statements of the Borrower are available, as though such Subsidiary had become a Subsidiary at the beginning of such new CFC Holding Company or Foreign period, unless such Subsidiary, together with all other Subsidiary (or such later date as Guarantors organized in the Administrative Agent shall agree same jurisdiction with respect to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to which no opinions have been received by the Administrative Agent, account for the benefit 4% of more of the Secured Partiesassets, a perfected first priority security interest in the Capital Stock of such CFC Holding Company revenues or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% Consolidated EBITDA of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Borrower (ii) deliver to determined on the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action same basis as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinprovided above).

Appears in 1 contract

Samples: Credit Agreement (Radiation Therapy Services Holdings, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral and not constituting Excluded Assets) acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, and (xy) any property subject to a Lien expressly permitted by Section 7.3(g) or (m), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lender does not have a perfected Lien, promptly (and in any event within thirty days after the end of the next completed month, or, with respect to Intellectual Property, as provided by Section 6.2(b)), (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Lender deems necessary or reasonably advisable to evidence that such Loan Party is a Guarantor and to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a security interest in such property and (ii) take all actions necessary or reasonably advisable in the opinion of Lender to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected security interest in any such property first priority (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions except as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g7.3) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive and Lien in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiaryproperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by Lender. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $2,500,000 acquired after the Administrative Agent and Closing Date by any Loan Party (Cother than any such real property subject to a Lien expressly permitted by Section 7.3(g) to deliver or (m)), promptly, to the Administrative Agent extent requested by Lender, (i) execute and deliver a certificate first priority Mortgage, in favor of Lender covering such Subsidiaryreal property, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (ivii) if requested by Lender, provide Lender with (x) title and extended coverage insurance covering such real property in an amount at least equal to the Administrative Agentpurchase price of such real property (or such other amount as shall be reasonably specified by Lender) as well as a current ALTA survey thereof, together with a surveyor’s certificate, and (y) any consents or estoppels reasonably deemed necessary or advisable by Lender in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to Lender and (iii) if requested by Lender, deliver to the Administrative Agent Lender legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentLender. (c) Subject to clause (d) With below, with respect to any new CFC Holding Company direct or Foreign indirect Material Subsidiary created or acquired after the Closing Date by any Loan Party (which, for including any Immaterial Subsidiary existing as of the purposes of this paragraph (d) shall include any existing Subsidiary that Closing Date which becomes a CFC Holding Company or a Foreign SubsidiaryMaterial Subsidiary after the Closing Date), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement Agreement, Foreign Pledge Documents or Foreign Security Documents as the Administrative Agent Lender deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in the Capital Stock of such CFC Holding Company new Material Subsidiary that is owned directly by such Loan Party, (ii) deliver to Lender such documents and instruments as may be required to grant, perfect, protect and ensure the priority of such security interest, including but not limited to, the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Material Subsidiary (A) to become a party to the Guarantee and Collateral Agreement or Guarantee (Non-U.S. Entities), as applicable, (B) to take such actions as are necessary or advisable in the opinion of Lender to grant to Lender for the benefit of the Secured Parties a perfected first priority security interest in (1) with respect to any such new Material Domestic Subsidiary, the Collateral described in the Guarantee and Collateral Agreement and (2) with respect to any such new Material Foreign Subsidiary, the Collateral described in the applicable Foreign Security Documents, in each case, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the applicable Foreign Security Documents, or by law or as may be requested by Lender and (C) to deliver to Lender a certificate of such Material Subsidiary, in a form reasonably satisfactory to Lender, with appropriate insertions and attachments, and (iv) if requested by Lender, deliver to Lender legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Lender. Notwithstanding anything contained herein, in the Guarantee and Collateral Agreement, in any Foreign Security Document or in any Foreign Pledge Document, (x) no First-Tier Foreign Subsidiary (nor any Subsidiary of any such First-Tier Foreign Subsidiary) shall be required to comply with the provisions described in clause (iii) above and (y) any security granted to Lender by a Foreign Subsidiary (including any pledge of Capital Stock) shall secure only the obligations in respect of the Non-U.S. Revolving Loans and shall not secure any obligations in respect of any U.S. Revolving Loans. (d) With respect to any new Material First-Tier Foreign Subsidiary of a U.S. Borrower created or acquired after the Closing Date by any Loan Party, promptly (i) execute and deliver to Lender such amendments to the Guarantee and Collateral Agreement, Foreign Law Pledge Documents and/or Foreign Law Security Documents, as Lender deems necessary or advisable to grant to Lender a perfected first priority security interest in the Capital Stock of such new Material First-Tier Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Party, (ii) deliver to the Administrative Agent Lender the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of Lender, desirable to perfect the Administrative AgentLender’s security interest therein, and (iii) if reasonably requested by Lender, deliver to Lender legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Lender; provided, however, that if the pledge pursuant to this Section 6.9(d) of one hundred percent (100%) of the total outstanding Capital Stock of such First-Tier Material Foreign Subsidiary would cause an inclusion of income under Section 951(a)(1)(B) of the Code to a Loan Party, then the pledge pursuant to this Section 6.9(d) shall be limited to sixty five percent (65%) of the total outstanding Capital Stock of such Material First-Tier Foreign Subsidiary entitled to vote (or if the relevant Loan Party shall own less than sixty five percent (65%) of such voting Capital Stock, then one hundred percent (100%) of the Capital Stock owned by such Loan Party so long as the aggregate amount of such voting Capital Stock pledged by Loan Parties does not exceed sixty five percent (65%) of the aggregate amount of such Capital Stock entitled to vote) and one hundred percent (100%) of the total outstanding Capital Stock of such Material First-Tier Foreign Subsidiary that is not entitled to vote (it being agreed that the determination of the entitlement to vote pursuant to this Section 6.9(d) shall be interpreted in accordance with Code Section 956 and the U.S. Treasury Regulations promulgated thereunder).

Appears in 1 contract

Samples: Credit Agreement (Rightside Group, Ltd.)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property (other than assets expressly excluded from the Collateral pursuant to the Security Documents) located in the United States acquired or created after the Closing Date by any Loan Party (including, without limitation, any acquisition pursuant to a Division) (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), ) and (y) so long as such Instruments, Certificated Securities, Securities and Chattel Paper referred to in the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost last sentence of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this clause (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Parties does not have a perfected Lien, promptly promptly, but in any case within 30 days (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such property to the Collateral Agent and execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably requests to grant to the Collateral Agent for the benefit of the Secured Parties a security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in such property (with respect to property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, has a perfected security interest in such property as of the Closing Date), including, without limitation, the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent. Any Instrument, Certificated Security (other than in respect of the Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $1,000,000 shall be promptly delivered to the Collateral Agent indorsed in a manner reasonably satisfactory to the Collateral Agent to be held as Collateral pursuant to the relevant Security Document. (b) With respect to any fee owned real property located in the United States having a value (together with improvements thereof) of at least $20,000,000 acquired after the Closing Date by any Loan Party (including, without limitation, any acquisition pursuant to a Division) (i) within 30 days of such acquisition, give notice of such acquisition to the Collateral Agent and, if requested by the Collateral Agent, within 90 days after such acquisition or such longer period as the Collateral Agent may agree in its reasonable discretion (A) execute and deliver a first priority Mortgage (subject to Liens permitted by Section 7.3) in favor of the Collateral Agent for the benefit of the Secured Parties, covering such real property (provided that no Mortgage, survey or title insurance shall be required or obtained if the Collateral Agent reasonably determines in consultation with the Borrower that the costs of obtaining such Mortgage or survey or title insurance are excessive in relation to the value of the security to be afforded thereby), (B) if a Mortgage is to be provided under subclause (i)(A) above, and if reasonably requested by the Collateral Agent (other than with respect to clauses (3) below) or a Lender (solely with respect to clause (2)(ii) below) (1) provide the Collateral Agent with a lenders’ title insurance policy with coverage and all required endorsements reasonably acceptable to the Collateral Agent (provided such endorsements are available in the applicable jurisdiction at a commercially reasonable cost) covering such real property and fixtures in an amount at least equal to the purchase price of such real property and fixtures (or such lesser amount as shall be reasonably requested by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate (except to the extent an existing survey has been provided), each in form and substance reasonably satisfactory to the Collateral Agent, (2) (i) confirm that the Collateral Agent has obtained a completed Flood Hazard Determination with respect to each Mortgaged Property and (ii) provide to any Lender such flood certificates or other information or documentation reasonably requested by such Lender to enable such Lender to comply with applicable Flood Laws, and (3) if any Mortgaged Property is a Special Flood Hazard Property, deliver to the Collateral Agent evidence of Flood Insurance complying with Flood Laws, including (x) evidence as to whether the community in which such Mortgaged Property is located participates in the National Flood Insurance Program, (y) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Mortgaged Property is located in a Special Flood Hazard Area and as to whether the community in which such Mortgaged Property is located participates in the National Flood Insurance Program and (z) if the community in which such Mortgaged Property is located participates in the National Flood Insurance Program, copies of the applicable Loan Party’s application for a Flood Insurance policy plus proof of premium payment, a declaration page confirming that Flood Insurance has been issued, or other evidence of Flood Insurance, such Flood Insurance to be in an amount equal to at least the amount required by the Flood Laws or such greater amount as required in order to comply with Section 6.5(c), naming the Collateral Agent as sole loss payee and mortgagee on behalf of the Secured Parties, and otherwise including terms reasonably satisfactory to the Collateral Agent to the extent necessary to comply with the Flood Laws, all such matters referred to in this clause (3) to be approved by the Collateral Agent (the requirements set forth in clauses 3 hereof are referred to herein as the “Flood Insurance Requirements”), and (ii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the Mortgage described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent; provided that notwithstanding the foregoing provisions of this Section 6.8(b), (I) no Mortgages shall be required with respect to any real property subject to material mortgage recording taxes (as determined by the Borrower in good faith) and (II) no Mortgage will be executed and delivered until each Revolving Lender has conformed to the Collateral Agent that the Flood Insurance Requirements have been completed to its satisfaction. (c) With respect to (x) any new Domestic Subsidiary (other than an Excluded Domestic Subsidiary) that is created or acquired after the Closing Date by any Loan Party (including, without limitation, upon the formation of any Subsidiary that is a Division Successor) or (y) any Unrestricted Subsidiary that becomes a Restricted Subsidiary (other than an Excluded Domestic Subsidiary) after the Closing Date, promptly, but in any case within 30 days of such creation, acquisition or designation (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such acquisition, creation or designation to the Collateral Agent and, other than in the case of an Excluded Domestic Subsidiary, execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by such Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic Subsidiary (other than an Excluded Domestic Subsidiary), cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (to the extent the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, has a perfected security interest in any such property (with the priority required by same type of Collateral as of the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (cd) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of FSHCO directly owned by Holdings, a CFC Holding Company) Borrower or a Domestic Subsidiary that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) but in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), case within thirty (30) 30 days after the creation or acquisition of such new Domestic Subsidiary acquisition (or such later date as which period may be extended by the Administrative Agent shall agree to in its sole discretion) ), (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that (A) in no event shall more than 65% of the total outstanding voting Capital Stock of (i) any such CFC Holding Company or Foreign Subsidiary and (ii) any FSHCO be required to be so pledged and (B) 100% of non-voting Capital Stock of (i) any Foreign Subsidiary and (ii) any FSHCO, if any, shall be required to be so pledged) and (ii) to the extent permitted by applicable law, deliver to the Administrative Collateral Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, necessary to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything to the contrary in any Loan Document, this Section shall not apply with respect to any collateral to the extent the Administrative Agent deems necessary or has reasonably advisable determined that the value of such collateral to perfect which this Section would otherwise apply is insufficient to justify the Administrative Agent’s security interest thereindifficulty, time and/or expense of obtaining a perfected Lien therefrom.

Appears in 1 contract

Samples: Credit Agreement (Macquarie Infrastructure Corp)

Additional Collateral, etc. (a) With respect to any property acquired on or after the Closing Funds Availability Date by any Loan Party (other than (w) Excluded Assets, Excluded Perfection Assets and any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, does not have a perfected Lien, promptly (and, in any event within 20 Business Days following the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in any such property (with subject, in the case of property not constituting Pledged Securities, to Permitted Liens afforded priority required ahead of the Lien of the Collateral Agent by operation of law, and in the Intercreditor Agreementcase of Pledged Securities, to Liens permitted by clause (e) of Section 6.02), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) or any lease consisting of at least $10,000,000 real property acquired or leased on or after the Closing Funds Availability Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than any Excluded Assets and Excluded Perfection Assets) within ninety (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (6090) days after the acquisition or leasing thereof (i) execute and deliver a first priority Mortgage (subject only to Liens permitted by clauses (c), (f), (g) and (m) of Section 6.02 and pari passu Liens permitted by clause (bb) of Section 6.02) or where appropriate under the circumstances, an amendment to an existing Mortgage, in each case in favor of the Collateral Agent, for the benefit of the Senior Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Senior Secured Parties with (x) either (1) (A) title insurance covering such real property in an amount at least equal to the purchase price of such real property (or such later date other amount as shall be reasonably specified by the Administrative Agent) in form and substance reasonably satisfactory to the Administrative Agent; and (B) a current ALTA survey thereof, complying with the requirements set forth in Schedule 5.10(b) together with a surveyor’s certificate (only with respect to (i) any power plant, (ii) any improved real property, and (iii) any other real property for which an ALTA survey was obtained when such property was acquired. Notwithstanding the foregoing, such Loan Party shall obtain or cause to be obtained an ALTA survey complying with the requirements set forth in Schedule 5.10(b) together with a surveyor’s certificate for any real property that becomes Collateral pursuant to this section to the extent that the title company will not remove the survey exception (or endorse over such exception) without an ALTA survey) or (2) where an amendment to an existing Mortgage has been delivered pursuant to clause (i) instead of a Mortgage, an endorsement to the existing title policy adding such property as an insured parcel, or a new title policy if the requirements in the state in which the real property is located do not allow for such an endorsement, and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent shall agree or the Collateral Agent in connection with such Mortgage or Mortgage amendment (to the extent obtainable using commercially reasonable efforts), each of the foregoing in its sole discretionform and substance reasonably satisfactory to the Collateral Agent, (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent and the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any Collateral Agent legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may and the Collateral Agent, (iv) if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral Agent a current appraisal of such real property or other valuation of such Loan Party’s interest therein in a form and by an appraiser reasonably request)acceptable to the Administrative Agent, (v) deliver to the Administrative Agent and the Collateral Agent a SFHDF with respect to such real property and, to the extent that the SFHDF indicates that such real property is in a Special Flood Hazard Area as designated by the Federal Emergency Management Agency, proof that adequate flood insurance, as required under the National Flood Insurance Program, has been obtained with respect to such real property and (vi) deliver evidence of zoning compliance satisfactory to the Collateral Agent or Administrative Agent. (c) With respect to (i) any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Excluded Subsidiary) that becomes a Domestic created or acquired by the Borrower or any of the Restricted Subsidiaries or (ii) any domestic Immaterial Subsidiary or domestic Unrestricted Subsidiary that is not designated as a CFC Holding Company Restricted Subsidiary in accordance with Section 6.11, in each case, on or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))after the Funds Availability Date, within thirty twenty (3020) days after the creation or acquisition of such new Domestic creation, acquisition or designation the Borrower or the applicable Restricted Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems and the Collateral Agent deem necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyParty (subject only to the Liens permitted by clause (e) of Section 6.02), (ii) deliver to the Administrative Collateral Agent the any certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Restricted Subsidiary, (iii) cause such new Subsidiary that is a wholly-owned Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Senior Secured Parties a perfected first priority security interest with (subject, in the case of property not constituting Pledged Securities, to Permitted Liens afforded priority required ahead of the Lien of the Collateral Agent by operation of law, and in the Intercreditor Agreement case of Pledged Securities, to Liens permitted by clause (e) of Section 6.02) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law Applicable Law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral 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 and the Collateral Agent. (d) With respect to (i) any new CFC Holding Company or Foreign Subsidiary created or acquired on or after the Closing Funds Availability Date and directly owned by any Loan Party or (which, for the purposes of this paragraph (dii) shall include any existing foreign Immaterial Subsidiary or foreign Unrestricted Subsidiary that becomes is designated as a CFC Holding Company Restricted Subsidiary in accordance with Section 6.11 and directly owned by any Loan Party, in each case, on or a Foreign Subsidiary)after the Funds Availability Date , promptly (and, in any event, within sixty (60) 30 days after of the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionthereof) (iA) execute and deliver to the Administrative Agent and the Collateral Agent (x) such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable and/or (y) a Foreign Pledge Agreement, in each case to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (subject only to the Liens permitted by clause (e) of Section 6.02 and provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged), (B) and (ii) if commercially reasonable, deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powerspower, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Collateral Agent’s security interest therein, and (C) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral 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 and the Collateral Agent. (9) Section 5.11(b) of the Credit Agreement is hereby amended to replace the words “after the Funds Availability Date” with the words “on or after the Funds Availability Date”. (10) Clause (i) of Section 5.13 of the Credit Agreement is hereby amended by replacing the words “each other Loan Party and its Subsidiaries” with “(A) each other Loan Party and its Subsidiaries and (B) Entergy and its subsidiaries”. (11) Clause (vi) of Section 5.13 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Appears in 1 contract

Samples: Credit Agreement (Enexus Energy CORP)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property that constitutes Excluded Property (or, so long as defined in the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion Guarantee and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyCollateral Agreement)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected LienLien and which is intended to constitute Collateral pursuant to the Security Documents, promptly (and in any event within five (5) Business Days of notice thereof from the Administrative Agent (or such longer period as the Administrative Agent may agree in its sole discretion)) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable.Agent. 109 (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 Material Real Property acquired after the Closing Date by any Loan Party (including or owned by a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) 6.10 after the Closing Date (other than (i) any such real property Material Real Property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property Material Real Property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Parent Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty ninety (6090) days after the acquisition thereof or the date such Person becomes a Loan Party, as applicable, (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents following, each in form and instruments required under Section 5.1(ksubstance reasonably acceptable to the Administrative Agent: (i) a duly executed and acknowledged Mortgage, (ii) a mortgagee title insurance policy insuring the first priority Lien of the Existing Credit Agreement Mortgage in an amount no greater than 100% of the fair market value of such Material Real Property as reasonably determined by Parent Borrower acting in good faith, free and clear of all Liens other than Permitted Liens, together with such customary endorsements as reasonably requested by the Administrative Agent, (including any legal opinions as iii) (A) a new American Land Title Association or American Congress of Surveying and Mapping form survey with respect to such Material Real Property in form reasonably acceptable to the Administrative Agent may reasonably request)or (B) an existing survey together with a no change affidavit sufficient for the title insurance company to remove the standard survey exception and issue any applicable survey related endorsements, (iv) customary legal opinions with respect to each Mortgage and (v) a “life-of-loan standard flood hazard determination”, and if such Material Real Property is located in a special flood area, a policy of flood insurance that (1) covers each such parcel and the building(s) located thereon, (2) is in compliance with the coverage required with respect to the particular type of property under the Flood Insurance Laws and otherwise acceptable to the Administrative Agent, and (3) has a term ending not later than the maturity of the Indebtedness secured by such Mortgage and (4) if such property is located in a special flood hazard area, confirmation that the Parent Borrower has received the notice required pursuant to the Flood Insurance Laws. (c) With respect to (x) any new Domestic Subsidiary (other than any Immaterial Excluded Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party Party, (which, for the purposes of this paragraph (c), shall include (1y) any existing Domestic Subsidiary (other than an Immaterial Excluded Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2z) any existing Domestic Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Excluded Subsidiary, within thirty forty-five (3045) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) after the creation or acquisition of such new Domestic Subsidiary or the date such existing Domestic Subsidiary becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company or ceases to be an Excluded Subsidiary, as applicable, (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Domestic Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Domestic Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Domestic Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Domestic Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) 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.110 (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein; provided, that such Loan Party shall be required to provide a local law pledge agreement with respect to such Capital Stock (and local law opinions relating to such local law pledge agreement, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent) as reasonably requested by the Administrative Agent. (e) Notwithstanding anything to the contrary set forth in this Agreement, each Subsidiary Borrower and any other applicable Loan Party shall, on the date such Domestic Subsidiary becomes a Subsidiary Borrower under this Agreement, (A) execute and deliver to the Administrative Agent such amendments to such Security Documents (or such additional Security Documents) as the Administrative Agent deems reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such Subsidiary Borrower, (B) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such other Loan Party, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Administrative Agent’s security interest therein, (C) execute and deliver to the Administrative Agent such amendments to such Security Documents (or such additional Security Documents and guarantee documents) as the Administrative Agent deems necessary or advisable for such Subsidiary Borrower to become a party to each applicable Security Document and guarantee document and (D) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected security interest in such property having the highest priority then available, including the filing of Uniform Commercial Code financing statements (or equivalent documents under local law) in such jurisdictions as may be required by the Security Documents or by law or as may be reasonably requested by the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Ultra Clean Holdings, Inc.)

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Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Company or any Loan Party of its Subsidiaries (other than (wx) any property Property described in paragraph (b), ) or paragraph (c) or (d) belowof this Section, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g6.1(c), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, does not have a perfected Lien, the Company or the applicable Subsidiary shall promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents Loan Documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral this Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property, or any leasehold estate in any real property with a term (including all renewal options) of more than 20 years, in each case having a value (together with improvements thereof) of at least $10,000,000 1,000,000, acquired after the Closing Date by the Company or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (i) any such real property owned by an Excluded Foreign Subsidiary subject to a Lien expressly permitted by Section 7.3(g6.1(c)), the Company or the applicable Subsidiary shall promptly (i) execute and deliver a first priority Mortgage in favor of the Administrative Agent, for the ratable benefit of the Lenders, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real estate (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such mortgage or deed of trust, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after by the creation Company or acquisition any of such new Domestic its Subsidiaries, the Company or the applicable Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Loan Documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Company or any Loan Partyof its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary Company or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in as the form of Exhibit C, with appropriate insertions and attachmentscase may be, and (iviii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary)any of its Subsidiaries, within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign the applicable Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement Loan Documents as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Company or any such Loan Party of its Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyCompany or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent deems necessary or reasonably advisable to perfect thereon, and (iii) if requested by the Administrative Agent’s security interest therein, 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.

Appears in 1 contract

Samples: Loan and Security Agreement (NCI, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property having a fair market value (together with improvements thereof) of at least $10,000,000 acquired in fee after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other Party, no later than (i) any such real property subject to a Lien expressly permitted 90 days after the acquisition or increase in the fair market value thereof, as may be extended by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction if required by the Collateral Agent, each in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject only to the documents ABL/Term Loan Intercreditor Agreement and instruments required Liens permitted under Section 5.1(k8.02, against such Real Property, (ii) provide the Lenders with a Title Policy and a Survey for each Mortgaged Property, together with such affidavits, certificates, instruments of indemnification, legal opinions, either (a) a “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination evidencing that the Existing Credit Agreement Mortgaged Property is not in a flood zone or (including any legal opinions b) evidence of flood insurance as required by the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended and in effect, and such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Guarantor after the Closing Date), promptly, and in any event within thirty (30) 30 days after the of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative First Lien Term Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (w) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor, (x) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (By) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect and (z) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect, (b) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with (subject only to the priority required by the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Collateral Agent and (Cc) to deliver to the Administrative Collateral Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Collateral Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Collateral Agent. (d) With respect to any new CFC Holding Company Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) (but not clauses (ii) or (iii)) of the definition of Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that subject only to Liens permitted under Section 8.02) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required to be so pledged) and 100% of the total outstanding non voting Capital Stock of any such Excluded Foreign Subsidiary and (ii) deliver to the Administrative First Lien Term Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. (e) With respect to any new Non Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Unrestricted Subsidiary, any Excluded Foreign Subsidiary and take any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other action than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and deliver to the Collateral Agent such amendments to this Agreement and the Security Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to Liens permitted under Section 8.02) in the Capital Stock of such Non Guarantor Subsidiary that is owned by any Loan Party and (ii) deliver to the First Lien Term Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), the Borrower may notify the Administrative Agent’s Agent at any time that the Borrower desires to join an Excluded Foreign Subsidiary as a Subsidiary Guarantor under this Agreement and the other Loan Documents, and, in any such case, cause such Excluded Foreign Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other documentation as the Collateral Agent deems reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Excluded Foreign Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Excluded Foreign Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Excluded Foreign Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document and other than with respect to the penultimate sentence of clause (e) above to the contrary, no actions in any non-U.S. jurisdiction shall be required in order to create any security interest thereininterests in assets located or titled outside of the U.S. or to perfect any 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).

Appears in 1 contract

Samples: Abl Credit and Guarantee Agreement (Janus International Group, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wA) any property described in paragraph (b), (c) or (dc) below, (xB) any property subject to a Lien expressly permitted by Section 7.3(g), (yC) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and thereby, (zD) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebythereby and (E) any property that is Excluded Property (as defined in the Guarantee and Collateral Agreement)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Excluded Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a an Excluded Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Domestic Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (dc) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.71 509265-2041-Active.31278172.28

Appears in 1 contract

Samples: Term Loan Credit Agreement (Rent a Center Inc De)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Group Member and not subject to the Senior Current Asset Security Agreement (other than (wx) any property described in paragraph (b), ) or (c) or below and (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g6.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion Inventory and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Receivables Security Agent, for the benefit of the Secured PartiesAgents and Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Inventory and Receivables Security Agent such amendments to the Guarantee and Collateral Agreement Documents or such other documents as the Administrative Inventory and Receivables Security Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a third priority security interest in such property (ranking after the security interest granted in such property to the Collateral Agent for the benefit of the Term Loan Lenders and the holders of Series A Notes) and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected third priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement Documents or by law or as may be requested by the Administrative Agent Inventory and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableReceivables Security Agent. (b) With respect to any (i) of the leasehold interests in real property set forth on Disclosure Schedule 5.7(b) (the "Leasehold Mortgaged Properties") hereto where the landlord under the applicable lease consents to the imposition of a mortgage Lien on such leasehold interests, or (ii) fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 250,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company6.3(g)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver a third priority Mortgage (ranking after any mortgage securing the obligations of any Group Member in respect of Term Loan Obligations and obligations owed by the Company with respect to the Administrative Agent such amendments to Series A Notes), in favor of the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected first priority security interest in the Capital Stock of covering such new Subsidiary that is owned by any Loan Partyreal property, (ii) deliver to if requested by the Administrative Agent Inventory and Receivables Security Agent, provide the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with Agents and Lenders (x) title and extended coverage insurance covering such real property in an amount at least equal to the priority required purchase price of such real property (or such other amount as shall be reasonably specified by the Intercreditor Agreement in the Collateral described in the Guarantee Inventory and Collateral Agreement Receivables Security Agent) as well as a current ALTA survey thereof, together with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Guarantee Inventory and Collateral Agreement or by law or as may be requested by Receivables Security Agent in connection with such Mortgage, each of the Administrative foregoing in form and substance reasonably satisfactory to the Inventory and Receivables Security Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iviii) if requested by the Administrative Inventory and Receivables Security Agent, deliver to the Administrative Collateral Agent for the benefit of the Agents and Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Inventory and Receivables Security Agent. With respect to each of the Leasehold Mortgaged Properties, the Borrower shall use commercially reasonable efforts to obtain the consent of the applicable landlord to the Lien of a Mortgage within 30 days following the Closing Date. (dc) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (whichGroup Member and any of Consumers Mining, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company Monessen Southwestern Railway or a Foreign Subsidiary), within sixty (60) days WP Coal which ceases after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree Closing Date to in its sole discretion) be an Inactive Subsidiary, promptly (i) execute and deliver to the Administrative Agent Collateral Agent, such amendments to the Guarantee and Collateral Agreement Documents as the Administrative Inventory and Receivables Security Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesAgents and Lenders, a perfected first third priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any Group Member (ranking after any security interest in such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock securing the obligations of any such CFC Holding Group Member in respect of Term Loan Obligations and obligations owed by the Company or Foreign Subsidiary be required with respect to be so pledged) and the Series A Notes), (ii) deliver to the Administrative Agent Collateral Agent, the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such Subsidiary (A) to execute a Guarantee Agreement with respect to the Obligations and to become a party to such other Collateral Documents as the Inventory and Receivables Security Agent deems appropriate, (B) to take such actions necessary or advisable to grant to the Collateral Agent or the Inventory and Receivables Security Agent, for the benefit of the Agents and Lenders a perfected security interest in the Collateral described in the Collateral Documents with respect to such Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Collateral Agent and (C) to deliver to the Inventory and Receivables Security Agent a certificate of such Subsidiary, substantially in the form of Exhibit E, with appropriate insertions and attachments, and take such other action as (iv) if requested by the Administrative Inventory and Receivables Security Agent, deliver to the Collateral Agent deems necessary or for the benefit of the Agents and Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably advisable satisfactory to perfect the Administrative Inventory and Receivables Security Agent’s security interest therein.

Appears in 1 contract

Samples: Revolving Loan Agreement (Wheeling Pittsburgh Corp /De/)

Additional Collateral, etc. (a) With respect to any property acquired after Property of the Closing Date by Borrower or any other Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property Property described in clause (b) below and (y) any Property subject to a Lien expressly permitted by Section 7.3(g6.3(g), (yh) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and or (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralk)) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Collateral Trustee does not have a first priority perfected LienLien following the Closing Date, upon the request of the Lender and, with respect to any Property acquired by Borrower or any other Loan Party after the Closing Date with a value in excess of One Million Dollars ($1,000,000), promptly after such acquisition (i) execute and deliver to the Administrative Agent Collateral Trustee such Security Documents or amendments to the Guarantee and Collateral Agreement any Security Document or such other documents as the Administrative Agent deems are necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Collateral Trustee a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Trustee a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiaryProperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement Security Documents or by law or as may be requested by the Administrative Agent Lender and the filing of Aircraft Mortgages. (Cb) With respect to any fee or leasehold interest in any real estate of the Borrower or any of its Subsidiaries (other than any such real estate subject to a Lien expressly permitted by Section 6.3(k)), as to which the Collateral Trustee does not have a first priority perfected Lien following the Closing Date, upon the request of the Lender and, with respect to any such interest having a value (together with improvements thereof) of at least One Million Dollars ($1,000,000) acquired by the Borrower or any of its Subsidiaries after the Closing Date, promptly after such acquisition (i) execute and deliver a first priority (except to the Administrative Agent a certificate extent that such Liens affect such real estate) Mortgage, as the case may be, in favor of the Collateral Trustee, covering such Subsidiaryreal estate, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (ivii) if requested by the Administrative AgentLender, deliver to provide the Administrative Agent Collateral Trustee with title and extended coverage insurance, together with surveys covering such real estate, any consents or estoppels reasonably deemed necessary or advisable by the Lender, any legal opinions relating to the matters described above, all of which insurance, surveys, consents, estoppels and legal opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative AgentLender. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Credit Agreement (Finova Group Inc)

Additional Collateral, etc. (ai) With respect to any personal property or Intellectual Property acquired after the Closing Date by any Loan Party (other than (w) any motor vehicles, or any tangible personal property described in paragraph (b), (c) evidenced by a title certificate or (d) below, (x) any other type of property subject to a Lien expressly permitted excluded by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralSecurity Documents) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee Guaranty and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest under U.S. law in such property pursuant to the terms, conditions and limitations set forth in the Guaranty and Collateral Agreement, subject to Liens permitted under Section 7.3, and (ii) take all actions necessary or reasonably advisable requested by the Collateral Agent to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest under U.S. law in any such property (with pursuant to the priority required by terms, conditions and limitations set forth in the Intercreditor Guaranty and Collateral Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably required by the Guarantee Guaranty and Collateral Agreement or by under U.S. law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (bii) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the date that is 180 days after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject or to be subject to a Lien expressly permitted by Section 7.3(g)), on a quarterly basis reasonably promptly within 30 days after delivery of the financial statements delivered pursuant to Section 6.1(a) or (b) execute and (ii) any deliver a first priority mortgage or deed of trust subject to the Liens permitted by such mortgage or deed of trust in a form substantially similar to the Mortgages on the Mortgaged Properties and otherwise reasonably satisfactory to the Administrative Agent, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property as to which the Administrative Agent determines, and recorded by a nationally recognized title insurance company in its reasonable discretion such manner and in consultation with such place as is required by law to establish, perfect, preserve and protect the Borrower, that Lien in favor of the cost of obtaining a security interest therein is excessive in relation Collateral Agent required to be granted pursuant to the value of 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 security to be afforded thereby), within sixty (60) days after the acquisition thereof (or Collateral Agent such later date documents as the Administrative Agent shall agree 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 its sole discretion) execute form and deliver substance reasonably satisfactory to the Administrative Agent the Agent) and other documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably requesttype described in Section 6.15 in respect of such Mortgage). (ciii) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee Guaranty and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest subject to Liens permitted pursuant to Section 7.3 in the Capital Stock of such new Subsidiary that is owned by any Loan PartyParty (provided such security interest shall be limited (A) in the case of a Foreign Subsidiary directly owned by a Domestic Subsidiary, to 65% of such Capital Stock in such Foreign Subsidiary and (B) in the case of any other Foreign Subsidiary or any Insurance Subsidiary or Immaterial Subsidiary, to 0% of such Capital Stock in such Foreign Subsidiary, Insurance Subsidiary or Immaterial Subsidiary), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (unless such Subsidiary is a Foreign Subsidiary, an Insurance Subsidiary, an Immaterial Subsidiary, a Regulated Entity or a Non-Wholly-Owned Subsidiary or otherwise excluded pursuant to the definition of a Subsidiary Guarantor) (A) to become a party to the Guarantee Guaranty and Collateral Agreement, (B) to take such actions necessary or and reasonably advisable requested by the Administrative Agent to grant to the Administrative Agent for the benefit of the Secured Parties Lenders a perfected first priority security interest with subject to the priority required by the Intercreditor Agreement Liens permitted under Section 7.3 in the Collateral described in the Guarantee Guaranty and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee Guaranty and Collateral Agreement or by U.S. law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CC or in such other form as may be reasonably acceptable to the Administrative Agent, with appropriate insertions and attachments, and (iv) 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. ; provided that (d1) With the Borrower shall not be required to take, or cause any Subsidiary to take, the actions required by this paragraph (c) with respect to any such new CFC Holding Company Subsidiary prior to the delivery of financial statements delivered pursuant to Section 6.1(a) or Foreign (b) for the fiscal quarter of the Borrower during which such new Subsidiary was created or acquired after unless (x) the Closing Date aggregate amount of Investments made by any Loan Party Borrower and the Subsidiaries in all such new Subsidiaries exceeds $10,000,000 prior to the end of such fiscal quarter or (which, for y) an Event of Default has occurred and is continuing and (2) the purposes of Borrower shall not be required to provide the legal opinions required by this paragraph (dc) shall include any existing if the applicable new Subsidiary that becomes (on a CFC Holding consolidated basis) accounts for less than 1% of the assets, revenues or Consolidated EBITDA of the Borrower, in each case on a pro forma basis as of the end of and for the four fiscal quarters most recently ended for which financial statements have been delivered under Section 6.1(a) or (b) or, if prior to the first delivery date for such financial statements, for which financial statements of the Company or are available, as though such Subsidiary had become a Foreign Subsidiary), within sixty (60) days after Subsidiary at the creation or acquisition beginning of such period, unless such new CFC Holding Company or Foreign Subsidiary, together with all other Subsidiary (or such later date as Guarantors organized in the Administrative Agent shall agree same jurisdiction with respect to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to which no opinions have been received by the Administrative Agent, account for the benefit 4% of more of the Secured Partiesassets, a perfected first priority security interest revenues or Consolidated EBITDA of the Borrower (determined on the same basis as provided above). To the extent that the representation and warranty set forth in Section 4.25 is true and correct as of the Capital Stock Amendment and Restatement Effective Date, any failure by the Borrower, prior to the Amendment and Restatement Effective Date, to notify the Administrative Agent and the Collateral Agent of such CFC Holding Company the formation or Foreign acquisition, prior to the Amendment and Restatement Effective Date, of any Subsidiary that is owned by required to become a Subsidiary Guarantor, and any failure to take any other actions (including delivery of certificates representing Capital Stock) referred to in the foregoing provisions of this Section 6.9(c) with respect to such Subsidiary and all Defaults and Events of Default (in each case, solely to the extent arising from or relating to any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock failure, and any failure to give notice of any such CFC Holding Company Default or Foreign Subsidiary be required to be so pledgedEvent of Default or any consequences of such Default or Event of Default that that would have arisen under the Original Credit Agreement or hereunder if such Default or Event of Default had not been waived) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinare hereby waived.

Appears in 1 contract

Samples: Amendment Agreement (Radiation Therapy Services Holdings, Inc.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Interim Facility Effective Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property Property subject to a Lien expressly permitted by Section 7.3(f) or Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to Pledge and Security Agreements, the Guarantee and Collateral Agreement Canadian General Security Agreements or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee any Pledge and Collateral Security Agreement and any Canadian General Security Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Interim Facility Effective Date by any a Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(f) or Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines)), in its reasonable discretion promptly, and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), any event within sixty (60) 30 days after the acquisition thereof thereof, (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a first priority Mortgage (subject to Permitted Liens) in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the Administrative purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) and (y) any consents or estoppels reasonably deemed necessary by the Collateral Agent the documents and instruments required under Section 5.1(k) in connection with such Mortgage, each of the Existing Credit Agreement foregoing in form and substance reasonably satisfactory to the Collateral Agent and (including any iii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance, and from counsel, reasonably request)satisfactory to the Collateral Agent. (c) With respect to any new Domestic U.S. or Canadian Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date Interim Facility Effective Date, by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) and in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), event within thirty (30) 15 days after the such creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee Pledge and Collateral Agreement Security Agreements as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned directly by any a Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant applicable Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee Guaranty and Collateral a Pledge and Security Agreement and/or to execute a Canadian General Security Agreement, as required by the Collateral Agent and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement Security Documents with respect to such new Subsidiary, including including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement any Security Document or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsCollateral Agent, and (iv) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. (d) With respect to any new CFC Holding Company Subsidiary of the Parent organized in a jurisdiction other than the United States or Foreign Subsidiary Canada that is created or acquired after the Closing Interim Facility Effective Date by a Loan Party, promptly, and in any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), event within sixty (60) 15 days after the such creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee Pledge and Collateral Agreement Security Agreements as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned directly by any such a Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant applicable Loan Party, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of the Collateral Agent, desirable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s security interest therein, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.

Appears in 1 contract

Samples: Debt and Security Agreement (Pope & Talbot Inc /De/)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property having a fair market value (together with improvements as determined at the time of acquisition thereof) of at least $10,000,000 25,000,000 acquired in fee after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other Party, no later than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) 90 days after the acquisition thereof (or such later date thereof, as may be extended by the Administrative Agent shall agree to in its sole reasonable discretion, (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction if required by the Collateral Agent, each in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject only to the documents ABL/Term Loan Intercreditor Agreement and instruments required Liens permitted under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request).8.02, #4848-1207-1386 112 (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Guarantor after the Closing Date), promptly, and in any event within thirty (30) 30 days after the of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (w) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor, (x) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (By) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect and (z) to the extent requested by the Administrative Agent a customary joinder agreement to the First Lien/Second Lien Intercreditor Agreement then in effect, (b) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with (subject only to the priority required by the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Collateral Agent and (Cc) to deliver to the Administrative Collateral Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Collateral Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Collateral Agent. (d) With respect to any new CFC Holding Company or Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) (but not clause (ii) or (iii)) of the definition of “Excluded Foreign Subsidiary” created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that subject only to Liens permitted under Section 8.02) in no event shall more than 65% of the total outstanding voting Capital Stock #4848-1207-1386 113 (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Unrestricted Subsidiary, any Excluded Foreign Subsidiary and any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and deliver to the Collateral Agent such CFC Holding Company amendments to this Agreement and the Security Agreement as the Collateral Agent deems necessary or Foreign advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to Liens permitted under Section 8.02) in the Capital Stock of such Non-Guarantor Subsidiary be required to be so pledged) that is owned by any Loan Party and (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital StockStock (if any), together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), and take such other action as the Borrower may notify the Administrative Agent at any time that the Borrower desires to join an Excluded Foreign Subsidiary as a Subsidiary Guarantor under this Agreement and the other Loan Documents, and, in any such case, cause such Excluded Foreign Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other documentation as the Collateral Agent deems necessary reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Excluded Foreign Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Excluded Foreign Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Excluded Foreign Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably advisable requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document to the contrary, (i) in no event shall any Loan Party be required to obtain control agreements with respect to deposit or securities accounts and (ii) no actions in any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the Administrative Agent’s security interest thereinlaws of any non-U.S. jurisdiction).

Appears in 1 contract

Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property (other than assets expressly excluded from the Collateral pursuant to the Security Documents) located in the United States acquired or created after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), 6.3(g) and (y) so long as Instruments, Certificated Securities, Securities and Chattel Paper, which are referred to in the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost last sentence of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this paragraph (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determinesfor the benefit of the Secured Parties does not have a perfected Lien, promptly, but in its reasonable discretion and in consultation with the Borrowerany case within 30 days, that the cost (i) give written notice of obtaining a security interest therein is excessive in relation such property to the value Collateral Agent and execute and deliver to the Collateral Agent such amendments to the Security Agreement or such other Security Document or other documents as the Collateral Agent (acting solely at the written direction of the security to be afforded thereby) as to which the Administrative Agent, acting solely at the written direction of the Required Lenders) reasonably requests to grant to the Collateral Agent for the benefit of the Secured Parties a first priority (subject to Permitted Liens) security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent (acting solely at the written direction of the Administrative Agent, acting solely at the written direction of the Required Lenders) to grant to the Collateral Agent for the benefit of the Secured Parties a first priority (subject to Permitted Liens) perfected security interest (to the extent required by the Security Documents) in such property (with respect to property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, does not have has a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit as of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may be reasonably requested by the Collateral Agent (acting solely at the written direction of the Administrative Agent, acting solely at the written direction of the Required Lenders). Any Instrument, Certificated Security (other than in respect of the Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $1,000,000 shall be promptly delivered to the Collateral Agent and (y) filing and recording of intellectual property security agreements with indorsed to the United States Patent and Trademark Office and Collateral Agent to be held as Collateral pursuant to the United States Copyright Office, as applicablerelevant Security Document. (b) With Notwithstanding anything to the contrary in any Loan Document, this Section shall not apply with respect to any fee interest collateral to the extent the Required Lenders have determined in any real property having a writing that the value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant collateral to which this Section 6.10) (other than (i) any such real property subject would otherwise apply is insufficient to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which justify the Administrative Agent determinesdifficulty, in its reasonable discretion and in consultation with the Borrower, that the cost time and/or expense of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request)perfected Lien therefrom. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Term Loan Agreement (Horizon Lines, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired on or after the Closing Funds Availability Date by any Loan Party (other than (w) Excluded Assets, Excluded Perfection Assets and any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, does not have a perfected Lien, promptly (and, in any event within 20 Business Days following the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in any such property (with subject, in the case of property not constituting Pledged Securities, to Permitted Liens afforded priority required ahead of the Lien of the Collateral Agent by operation of law, and in the Intercreditor Agreementcase of Pledged Securities, to Liens permitted by clause (e) of Section 6.02), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) or any lease consisting of at least $10,000,000 real property acquired or leased on or after the Closing Funds Availability Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than any Excluded Assets and Excluded Perfection Assets) within ninety (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (6090) days after the acquisition or leasing thereof (i) execute and deliver a first priority Mortgage (subject only to Liens permitted by clauses (c), (f), (g) and (m) of Section 6.02 and pari passu Liens permitted by clause (bb) of Section 6.02) or where appropriate under the circumstances, an amendment to an existing Mortgage, in each case in favor of the Collateral Agent, for the benefit of the Senior Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Senior Secured Parties with (x) either (1) (A) title insurance covering such real property in an amount at least equal to the purchase price of such real property (or such later date other amount as shall be reasonably specified by the Administrative Agent) in form and substance reasonably satisfactory to the Administrative Agent; and (B) a current ALTA survey thereof, complying with the requirements set forth in Schedule 5.10(b) together with a surveyor's certificate (only with respect to (i) any power plant, (ii) any improved real property, and (iii) any other real property for which an ALTA survey was obtained when such property was acquired. Notwithstanding the foregoing, such Loan Party shall obtain or cause to be obtained an ALTA survey complying with the requirements set forth in Schedule 5.10(b) together with a surveyor's certificate for any real property that becomes Collateral pursuant to this section to the extent that the title company will not remove the survey exception (or endorse over such exception) without an ALTA survey) or (2) where an amendment to an existing Mortgage has been delivered pursuant to clause (i) instead of a Mortgage, an endorsement to the existing title policy adding such property as an insured parcel, or a new title policy if the requirements in the state in which the real property is located do not allow for such an endorsement, and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent shall agree or the Collateral Agent in connection with such Mortgage or Mortgage amendment (to the extent obtainable using commercially reasonable efforts), each of the foregoing in its sole discretionform and substance reasonably satisfactory to the Collateral Agent, (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent and the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any Collateral Agent legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may and the Collateral Agent, (iv) if requested by the Administrative Agent or the Collateral Agent, deliver to the Administrative Agent and the Collateral Agent a current appraisal of such real property or other valuation of such Loan Party's interest therein in a form and by an appraiser reasonably request)acceptable to the Administrative Agent, (v) deliver to the Administrative Agent and the Collateral Agent a SFHDF with respect to such real property and, to the extent that the SFHDF indicates that such real property is in a Special Flood Hazard Area as designated by the Federal Emergency Management Agency, proof that adequate flood insurance, as required under the National Flood Insurance Program, has been obtained with respect to such real property and (vi) deliver evidence of zoning compliance satisfactory to the Collateral Agent or Administrative Agent. (c) With respect to (i) any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Excluded Subsidiary) that becomes a Domestic created or acquired by the Borrower or any of the Restricted Subsidiaries or (ii) any domestic Immaterial Subsidiary or domestic Unrestricted Subsidiary that is not designated as a CFC Holding Company Restricted Subsidiary in accordance with Section 6.11, in each case, on or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))after the Funds Availability Date, within thirty twenty (3020) days after the creation or acquisition of such new Domestic creation, acquisition or designation the Borrower or the applicable Restricted Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems and the Collateral Agent deem necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyParty (subject only to the Liens permitted by clause (e) of Section 6.02), (ii) deliver to the Administrative Collateral Agent the any certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Restricted Subsidiary, (iii) cause such new Subsidiary that is a wholly-owned Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Senior Secured Parties a perfected first priority security interest with (subject, in the case of property not constituting Pledged Securities, to Permitted Liens afforded priority required ahead of the Lien of the Collateral Agent by operation of law, and in the Intercreditor Agreement case of Pledged Securities, to Liens permitted by clause (e) of Section 6.02) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law Applicable Law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral 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 and the Collateral Agent. (d) With respect to (i) any new CFC Holding Company or Foreign Subsidiary created or acquired on or after the Closing Funds Availability Date and directly owned by any Loan Party or (which, for the purposes of this paragraph (dii) shall include any existing foreign Immaterial Subsidiary or foreign Unrestricted Subsidiary that becomes is designated as a CFC Holding Company Restricted Subsidiary in accordance with Section 6.11 and directly owned by any Loan Party, in each case, on or a Foreign Subsidiary)after the Funds Availability Date , promptly (and, in any event, within sixty (60) 30 days after of the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionthereof) (iA) execute and deliver to the Administrative Agent and the Collateral Agent (x) such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable and/or (y) a Foreign Pledge Agreement, in each case to grant to the Administrative Collateral Agent, for the benefit of the Senior Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (subject only to the Liens permitted by clause (e) of Section 6.02 and provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged), (B) and (ii) if commercially reasonable, deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powerspower, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Collateral Agent's security interest therein, and (C) if requested by the Administrative Agent, deliver to the Administrative Agent deems necessary or and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably advisable satisfactory to perfect the Administrative Agent and the Collateral Agent’s security interest therein.

Appears in 1 contract

Samples: Credit Agreement (Entergy Corp /De/)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property Real Property having a fair market value (together with improvements thereof) of at least $10,000,000 acquired in fee after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other Party, no later than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) 90 days after the acquisition thereof (or such later date increase in the fair market value thereof, as may be extended by the Administrative Agent shall agree to in its sole reasonable discretion, (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction if required by the Collateral Agent, each in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent, as may be necessary to create a valid, perfected and subsisting Lien, subject only to the documents ABL/Term Loan Intercreditor Agreement and instruments required Liens permitted under Section 5.1(k8.02, against such Real Property, (ii) provide the Lenders with a Title Policy and a Survey for each Mortgaged Property, together with such affidavits, certificates, instruments of indemnification, legal opinions, either (a) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination evidencing that the Existing Credit Agreement Mortgaged Property is not in a flood zone or (including any legal opinions b) evidence of flood insurance as required by the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended and in effect, and such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably requestAgent). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Guarantor after the Closing Date), promptly, and in any event within thirty (30) 30 days after the of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (w) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor, (x) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (By) to the extent requested by the Administrative Agent a customary joinder agreement to the ABL/Term Loan Intercreditor Agreement then in effect and (z) to the extent requested by the Administrative Agent a customary joinder agreement to the First Lien/Second Lien Intercreditor Agreement then in effect, (b) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with (subject only to the priority required by the ABL/Term Loan Intercreditor Agreement and Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Collateral Agent and (Cc) to deliver to the Administrative Collateral Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Collateral Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Collateral Agent. (d) With respect to any new CFC Holding Company or Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) (but not clause (ii) or (iii)) of the definition of “Excluded Foreign Subsidiary” created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that subject only to Liens permitted under Section 8.02) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required to be so pledged) and 100% of the total outstanding non-voting Capital Stock of any such Excluded Foreign Subsidiary and (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Unrestricted Subsidiary, any Excluded Foreign Subsidiary and take any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other action than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and deliver to the Collateral Agent such amendments to this Agreement and the Security Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject only to Liens permitted under Section 8.02) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party and (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Notwithstanding anything to the contrary in the foregoing clauses (c) and (d), the Borrower may notify the Administrative Agent’s Agent at any time that the Borrower desires to join an Excluded Foreign Subsidiary as a Subsidiary Guarantor under this Agreement and the other Loan Documents, and, in any such case, cause such Excluded Foreign Subsidiary to (i) become a Subsidiary Guarantor by executing and delivering to the Collateral Agent a Guarantor Joinder Agreement along with such other documentation as the Collateral Agent deems reasonably appropriate for effecting such joinder, (ii) xxxxx x Xxxx in favor of the Collateral Agent for the ratable benefit of the Secured Parties on the assets and other personal property of such Excluded Foreign Subsidiary of the same type that constitute Collateral for purposes of the Security Documents (other than with respect to any Excluded Assets of such Excluded Foreign Subsidiary but without giving effect to any provision of the definition of Excluded Assets that would otherwise result in such Excluded Foreign Subsidiary (and its tangible and intangible personal property) constituting an Excluded Asset) and (iii) enter into any such amendments, modifications, or other changes to this Agreement and any other Loan Document reasonably requested by the Collateral Agent in its reasonable discretion in order to address any matters in connection with, or related to, such Excluded Foreign Subsidiary becoming a Subsidiary Guarantor under the Loan Documents. Each of the Lenders hereby authorize the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document to the contrary, (i) in no event shall any Loan Party be required to obtain control agreements with respect to deposit or securities accounts and (ii) no actions in any non-U.S. jurisdiction shall be required in order to create any security interest thereininterests in assets located or titled outside of the U.S. or to perfect any 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).

Appears in 1 contract

Samples: First Lien Credit and Guarantee Agreement (Janus International Group, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), below and (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralExcluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lenders does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Lenders such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Lenders deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lenders a security interest in such property to the extent set forth in the Guarantee and Collateral Agreement and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lenders a perfected security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect subject only to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after Permitted Liens securing the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which Creo Debt, the Administrative Agent determines, in its reasonable discretion and in consultation with M Data Debt or the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiaryNational City Debt, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent Lenders. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $500,000 acquired after the Closing Date by any Group Member (other than real property acquired by any Excluded Foreign Subsidiary), promptly (i) execute and deliver a first priority mortgage, for the benefit of the Lenders, covering such real property, subject only to any Permitted Lien securing the Creo Debt, (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (ivii) if requested by the Administrative AgentLenders, provide the Lenders with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Lenders) as well as a current ALTA survey thereof, together with a surveyor's certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Lenders in connection with such mortgage, each of the foregoing in form and substance reasonably satisfactory to the Lenders and (iii) if requested by the Lenders, deliver to the Administrative Agent Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentLenders. (dc) With respect to any new CFC Holding Company or Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) c), shall include any existing Subsidiary that becomes a CFC Holding Company or a ceases to be an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Lenders such amendments to the Guarantee and Collateral Agreement as the Administrative Agent Lenders deems necessary or reasonably advisable to grant to the Administrative AgentLenders, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of Group Member, subject only to any Permitted Liens securing the total outstanding voting Capital Stock of any such CFC Holding Company Creo Debt, the M Data Debt or Foreign Subsidiary be required to be so pledged) and the National City Debt, (ii) deliver to the Administrative Agent Lenders (or, so long as the Intercreditor Agreement remains in effect, to Creo) the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the Lenders a perfected security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, subject only to any Permitted Liens securing the Creo Debt, the M Data Debt or the National City Debt, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Lenders and (C) to deliver to the Lenders a certificate of such Subsidiary, substantially in the form of EXHIBIT C, with appropriate insertions and attachments, and (iv) if requested by the Lenders, deliver to the Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Lenders. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by any Group Member (other than by any Group Member that is an Excluded Foreign Subsidiary), promptly (i) execute and deliver to the Lenders such amendments to the Guarantee and Collateral Agreement as the Lenders deems necessary or advisable to grant to the Lenders, a perfected first priority security interest, subject only to any Permitted Liens securing the Creo Debt, the M Data Debt or the National City Debt, in the Capital Stock of such new Subsidiary that is owned by any such Group Member (provided that in no event shall more than 66% of the total outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged), (ii) deliver to the Lenders (or, so long as the Intercreditor Agreement remains in effect, to Creo) the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of the Lenders, desirable to perfect the Administrative Agent’s Lenders' security interest therein, and (iii) if requested by the Lenders, deliver to the Lenders legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Lenders.

Appears in 1 contract

Samples: Loan Agreement (Printcafe Software Inc)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lender does not have a perfected LienLien that is required by the Guarantee and Collateral Agreement (excluding, promptly for the avoidance of doubt, real property), the Borrower will, and will cause each other Loan Party to, promptly: (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Lender deems reasonably necessary or reasonably advisable to evidence that such Loan Party is a Guarantor and to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable in the reasonable opinion of the Lender to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority (except as expressly permitted by Section 7.2) security interest and Lien in any such property (with the priority Collateral as required by the Intercreditor Agreement)Guarantee and Collateral Agreement or any other Security Document, including (xif applicable) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or taking any other action as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableLender. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party with an individual fair market value in excess of $250,000, promptly (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), any event within sixty (60) days after the of such acquisition thereof (or such later date longer period as approved by the Administrative Agent shall agree to Lender in its sole reasonable discretion): (i) execute and deliver to a first priority Mortgage in the Administrative Agent the documents and instruments required under Section 5.1(k) maximum principal amount of the Existing Credit Agreement purchase price of such real property in jurisdictions that impose mortgage recording taxes (including any legal opinions or such other amount as shall be reasonably specified by the Lender in jurisdictions that do not impose mortgage recording taxes), in favor of the Lender covering such real property, (ii) if requested by the Lender, provide the Lender with (1) title and extended coverage insurance (with such customary endorsements, coinsurance and reinsurance as the Administrative Agent Lender may reasonably request)) covering such real property, paid for by the Borrower and issued by a nationally recognized title insurance company, in an amount equal to the purchase price of such real property, (2) a current ALTA/NSPS survey thereof, paid for by the Borrower and in each case, including all improvements, easements and other customary matters thereon reasonably required by the Lender, together with a surveyor’s certificate and complying in all material respects with the minimum detail requirements of the American Land Title Association and National Society of Professional Surveyors as such requirements are in effect on the date of preparation of such survey, or an existing survey, in each case, sufficient for such title insurance company to remove all standard survey exceptions from the title insurance policy relating to such real property and issue the customary survey related endorsements or otherwise reasonably acceptable to the Lender, (3) flood insurance determination certificates, and if applicable, evidence that the applicable Loan Party has obtained flood insurance covering such property in an amount required for the Lender to be in compliance with the National Flood Insurance Act of 1968 and (4) such other documents as the Lender may reasonably request that are in the Borrower’s possession with respect to any such real property, and (iii) if requested by the Lender, deliver to the Lender legal opinions relating to such Mortgage, which opinions shall be in form and substance reasonably satisfactory to the Lender. (c) With respect to any new Domestic direct or indirect Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary promptly (and that is not a CFC Holding Company)), in any event within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date longer period as approved by the Administrative Agent shall agree to Lender in its sole discretion) ): (i) execute and deliver to the Administrative Agent Lender such supplements, joinders or amendments to the Guarantee and Collateral Agreement applicable Security Documents as the Administrative Agent Lender deems reasonably necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned directly or indirectly by any such Loan Party, (ii) deliver to the Administrative Agent Lender such documents and instruments as may be required to grant, perfect, protect and ensure the certificates priority of such security interest, including but not limited to, the certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, any Control Agreement with respect to each Deposit Account or Securities Account to the extent a Control Agreement is required to perfect a lien on such Deposit or Securities Account (other than, in each case, Excluded Accounts), and any Security Document (or any amendment, supplement or modification thereof) with respect to Intellectual Property (other than Excluded Assets), (iii) cause such new Subsidiary or any Subsidiary formed for the purpose of acquiring any such Subsidiary (A) to become a party to the Guarantee and Collateral AgreementAgreement and other applicable Security Documents, (B) to take such actions as are reasonably necessary or reasonably advisable in the opinion of the Lender to grant to the Administrative Agent for the benefit of the Secured Parties Lender a perfected first priority security interest with the priority required by the Intercreditor Agreement (subject to Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Agreement or such other Security Documents, with respect to such new Subsidiary, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent Lender and (C) to deliver to the Administrative Agent Lender a customary certificate of such Subsidiary, substantially in a form reasonably satisfactory to the form of Exhibit CLender, with appropriate insertions and attachments, and (iv) if requested by the Administrative AgentLender, deliver to the Administrative Agent Lender 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. Lender. Notwithstanding the foregoing, (di) With other than the Collateral in which a Lien was previously granted or required to be granted by the Loan Parties, or the guarantees provided by the Loan Parties, in each case, on the Closing Date or pursuant to Section 5.2, the Loan Parties shall not be required to deliver any Collateral or perfect the Lender’s security interest with respect to any new CFC Holding Company Collateral (except to the extent perfection can be accomplished by filing UCC financing statements) or Foreign Subsidiary created provide any guarantee of the Obligations, in each case, if the cost of delivering or acquired after perfecting the lien in such Collateral or of providing such guarantee exceeds the benefit to the Lender (which shall take into account any adverse tax consequences suffered or expected to be suffered by the Borrower or any Loan Party as a result thereof), in each case, as reasonably determined by the Lender, and (ii) other than the Collateral in which a Lien was previously granted or required to be granted by the Loan Parties, or the guarantees provided by the Loan Parties, in each case, on the Closing Date by any Loan Party (whichor pursuant to Section 5.2, for the purposes of this paragraph (d) no such Liens or guarantees shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and provided by any Subsidiary in any case in which (ii) deliver or, if applicable, to the Administrative Agent extent that) the certificates representing provision of such pledged Capital Stock, together with undated stock powersLien or guarantee would violate applicable law, in blankeach case, executed and delivered as reasonably determined by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinLender.

Appears in 1 contract

Samples: Credit Agreement (Edgio, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest (subject to Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any Real Property (i) owned or acquired in fee interest in by Holdings or any real property Restricted Subsidiary on the Closing Date having a fair market value (together with improvements thereof) of at least $10,000,000 acquired 1,000,000 (as reasonably determined by the Borrower) (each such Real Property, subject to the last sentence of this Section 7.08(b), an “Initial Mortgaged Property”), or (ii) acquired, constructed or improved after the Closing Date having a fair market value (together with improvements thereof) of at least $1,000,000 (as reasonably determined by the Borrower) and owned in fee by any Loan Party (including a Person or owned by any Restricted Subsidiary that owns such real property and becomes a Loan Party pursuant after the Closing Date) (each such Real Property, subject to the last sentence of this Section 6.10) 7.08(b), being “Additional Real Property”), within 90 days after the Closing Date for each Initial Mortgaged Property (other than (i) any as such real property subject date may be extended from time to a Lien expressly permitted time by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) (or in the case of any Additional Real Property, no later than 90 days after the acquisition, construction or improvement thereof (or the creation or acquisition of any Subsidiary Guarantor which owns Additional Real Property, as applicable), as may be extended by the Administrative Agent in its reasonable discretion) (A) execute and deliver a Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction (if the Mortgage does not constitute a UCC fixture filing in such jurisdiction), each in form and substance reasonably satisfactory to the Administrative Agent the documents Agent, as may be necessary to create a valid, perfected and instruments required subsisting Lien, subject to Liens permitted under Section 5.1(k8.02, against such Real Property, (B) of provide the Existing Credit Agreement Lenders as addressee, for their benefit or as insured (including any legal opinions as the case may be), with title policies, extended coverage and insurance, ALTA surveys, such affidavits, certificates, instruments of indemnification, legal opinions, (1) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination indicating whether the Mortgaged Property is in a flood zone and (2) if applicable, evidence of flood insurance as required by the National Flood Insurance Program as set forth in the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, each as amended and in effect, and such other information, documentation (including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably request)Agent. In connection with the foregoing requirements, it is understood and agreed that all Initial Mortgaged Properties shall be owned by one or more Loan Parties. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Restricted Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days Guarantor after the Closing Date) , promptly, and in any event within 30 days of such creation or acquisition (or, in the case of any Restricted Subsidiary that becomes a Subsidiary Guarantor, the date that such new Domestic Restricted Subsidiary becomes a Subsidiary Guarantor) (or as such later date as may be extended from time to time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments (including, without limitation, supplements to the Guarantee schedules) to this Agreement and Collateral the Security Agreement as the Administrative Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Administrative Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Administrative Agent to become a party Subsidiary Guarantor, and (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent the assets subject to the applicable Security Document can be perfected by the actions required, and to the extent required, by such Security Document) first priority security interest with the priority required by the Intercreditor Agreement (subject to Liens permitted hereunder) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Agent and (Cc) to deliver to the Administrative Agent (i) a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01(i), with appropriate insertions and attachments, attachments and (ivii) if reasonably requested by the Administrative Agent, deliver a legal opinion from counsel to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be such new Subsidiary Guarantor in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary that is owned directly by a Loan Party created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in (subject to the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that Liens permitted under Section 8.02) in no event shall more than 6565.0% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required described in clause (i) of the definition of Excluded Foreign Subsidiary that is owned directly by a Loan Party and 100% of the total outstanding non-voting Capital Stock of such Excluded Foreign Subsidiary in each case, to be so pledged) the extent owned by one or more Loan Parties, and (ii) deliver to the Administrative Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Excluded Foreign Subsidiary and any Subsidiary which would be a Subsidiary Guarantor but for clause (vi) in the definition thereof to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person (other than Holdings or any of its Restricted Subsidiaries) party thereto which consent has not been obtained), promptly (i) execute and take deliver to the Administrative Agent such other action amendments to this Agreement and the Security Agreement as the Administrative Agent deems necessary or reasonably advisable to perfect grant to the Administrative Agent’s , for the benefit of the Secured Parties, a perfected first priority security interest therein(subject to the terms of the Liens permitted under Section 8.02) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party and (ii) deliver to the Administrative Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Each of the Lenders hereby authorize the Administrative Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) Notwithstanding anything herein or in any other Loan Document to the contrary, no actions in any non-U.S. jurisdiction (including, for the avoidance of doubt, with respect to any intellectual property registered in any non-U.S. jurisdiction) shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements (including, for the avoidance of doubt, with respect to any intellectual property registered in any non-U.S. jurisdiction) governed under the laws of any non-U.S. jurisdiction).

Appears in 1 contract

Samples: Abl Credit and Guarantee Agreement (ATI Intermediate Holdings, LLC)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Closing Date or, in the case of inventory or equipment, any material Collateral moved after the Closing Date by the Company or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable to grant grant, to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in such Collateral (other than any such property (with the priority required by the Intercreditor AgreementExcluded Perfection Assets), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent, the Collateral Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Trustee. (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any other Loan Party or which becomes Collateral pursuant to the definition thereof, promptly (whichand, for the purposes of this paragraph (c), shall include (1) in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) provide the Secured Parties with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor's certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee, (iii) deliver to the Administrative Agent the certificates representing such Capital StockAgent, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent Collateral Trustee 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, the Collateral Agent and the Collateral Trustee and (iv) deliver to the Administrative Agent a notice identifying the consultant's reports, environmental site assessments or other documents relied upon by the Company or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a material Environmental Liability. (dc) With respect to any new CFC Holding Company or Subsidiary (other than an Excluded Foreign Subsidiary or an Excluded Project Subsidiary, except for an Excluded Project Subsidiary the pledge of whose Equity Interests pursuant to the Security Documents would not cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Subsidiary that becomes ceases to be an Excluded Foreign Subsidiary or an Excluded Project Subsidiary and any Equity Interests in an Excluded Project Subsidiary the pledge of which would no longer cause a CFC Holding default under the applicable Non-Recourse Debt in respect of which it is an obligor) by the Company or a Foreign Subsidiaryany of the Subsidiaries, promptly (and, in any event, within 10 days following such creation or the date of such acquisition), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding new Subsidiary that are owned by the Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Subsidiaries, (ii) deliver to the Administrative Agent Collateral Trustee the certificates certificates, if any, representing such pledged Capital StockEquity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyCompany or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary (A) to become a party to the Guarantee and Collateral Agreement (and provide Guarantees of the Secured Obligations hereunder), the Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office, the execution and delivery by all necessary Persons of Control Agreements and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Intellectual Property Security Agreement or by law or as may be requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee, if requested, 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, the Collateral Agent and the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by the Company or any of its Subsidiaries, promptly (and, in any event, within 10 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Equity Interests in such new Excluded Foreign Subsidiary that is owned by the Company or any of its Domestic Subsidiaries (provided that in no event shall more than 66% of the total outstanding voting Equity Interests in any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Trustee the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the Collateral Trustee, desirable to perfect the security interest of the Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and the Collateral Trustee, if requested, 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, the Collateral Agent and the Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy Inc)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Closing Date or, in the case of inventory or equipment that is part of the Collateral, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agentapplicable Collateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 Business Days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement, the Texas Genco Security Agreement or such other documents Security Documents as the Administrative Collateral Agent or the applicable Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative Agentsuch Collateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative Agentapplicable Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property Excluded Perfection Assets and, except with respect to Pledged Securities, subject to Permitted Liens, and in respect of Pledged Securities, the Permitted Liens set forth in clause (with h) of the priority required by the Intercreditor Agreementdefinition thereof), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Texas Genco Security Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent and (y) filing and recording or the applicable Collateral Trustee. For the avoidance of intellectual property security agreements with doubt, any Collateral acquired by Texas Genco or its Subsidiaries shall be governed by the United States Patent and Trademark Office Texas Genco Security Agreement and the United States Copyright Office, as applicableTexas Genco Collateral Trust Agreement unless and until the Texas Genco Collateral Trust Agreement is terminated in compliance with Article 10 of the NRG Collateral Trust Agreement. (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by the Borrower or any other Loan Party (including a Person that owns such real property and or which becomes a Loan Party Collateral pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition definition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cExcluded Perfection Assets), shall include promptly (1) and, in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and applicable Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) deliver provide the Secured Parties with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Partyapplicable Collateral Trustee, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or if reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee 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, the Collateral Agent and the applicable Collateral Trustee and (iv) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could, or to determine that the operations on any such real property included in such Collateral is in compliance with Environmental Law except to the extent any non-compliance could not, reasonably be expected to result in a material Environmental Liability. (c) With respect to any new Subsidiary (other than an Unrestricted Subsidiary or an Excluded Subsidiary, except for an Excluded Project Subsidiary the pledge of whose Equity Interests pursuant to the Security Documents would not cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be an Unrestricted Subsidiary, an Excluded Foreign Subsidiary or an Excluded Project Subsidiary and any Equity Interests in an Excluded Project Subsidiary the pledge of which would no longer cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 days following such creation or the date of such acquisition), (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement or the Texas Genco Security Agreement as the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee deems necessary or reasonably advisable to grant to the applicable Collateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the applicable Collateral Trustee the certificates, if any, representing such Equity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary or an Unrestricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement to, among other things, provide Guarantees of the Guaranteed Obligations hereunder, the applicable Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably requested by the Administrative Agent to grant to the applicable Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest (except with respect to Pledged Securities, subject to Permitted Liens, and in respect of Pledged Securities, the Permitted Liens in clause (h) of the definition thereof) in the Collateral described in the Guarantee and Collateral Agreement, the Texas Genco Security Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office, the execution and delivery by all necessary Persons of Control Agreements and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Texas Genco Security Agreement, the Intellectual Property Security Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee, if reasonably requested, 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, the Collateral Agent and the applicable Collateral Trustee. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary (other than an Unrestricted Subsidiary) created or acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries, promptly (whichand, for the purposes of this paragraph (d) shall include in any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary)event, within sixty (60) 25 days after the following such creation or acquisition the date of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the applicable Collateral Trustee such amendments to the Guarantee and Collateral Agreement or the Texas Genco Security Agreement as the Administrative Agent, the Collateral Agent or the applicable Collateral Trustee deems necessary or reasonably advisable in order to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of first-tier Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent applicable Collateral Trustee the certificates representing such pledged Capital StockEquity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the applicable Collateral Trustee, desirable to perfect the security interest of such Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and such Collateral Trustee, if reasonably requested, legal opinions (which may be delivered by in-house counsel if admitted in the relevant jurisdiction) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, the Collateral Agent and such Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Borrower or any Loan Party of its Restricted Subsidiaries (other than (wx) any property Property described in paragraph (b), ) or paragraph (c) or (d) belowof this Section, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y7.03(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new SubsidiaryProperty, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent Collateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $500,000 acquired after the Closing Date by the Borrower or any of its Restricted Subsidiaries (other than any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.03(g)), promptly (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (ivii) if requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. (dc) With respect to any new CFC Holding Company or Restricted Subsidiary (other than an Excluded Foreign Subsidiary Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Subsidiary that becomes ceases to be an Excluded Foreign Subsidiary and any Unrestricted Subsidiary that is redesignated as a CFC Holding Company or a Foreign SubsidiaryRestricted Subsidiary pursuant to Section 6.11(l)), within sixty (60) days after by the creation Borrower or acquisition any of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Restricted Subsidiaries, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Restricted Subsidiary that is owned by the Borrower or any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and its Restricted Subsidiaries, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement (subject to Liens permitted by Section 7.02) with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent, and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any of its Restricted Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary or advisable in order to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by the Borrower or any of its Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Restricted Subsidiary, as the case may be, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable reasonable opinion of the Collateral Agent, desirable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s security interest therein, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (e) Promptly upon the request of the Collateral Agent, Borrower shall establish a cash management system subject to a depositary agreement satisfactory to the Collateral Agent whereby lock boxes, lock box accounts, and concentration accounts are established and maintained under the sole dominion and control of the Collateral Agent, into which all payments on and proceeds of (i) Private Accounts, and (ii) to the extent permitted and in a manner consistent with all applicable laws and regulations, Government Receivables, shall be deposited and from which all collected funds will be transferred.

Appears in 1 contract

Samples: Credit Agreement (Rotech Healthcare Inc)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (other than (wx) any property Property described in paragraph (b), (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyReceivables Facility Assets) as to which the Administrative Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such Property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (b) With respect to any fee interest in any real property having estate which, together with any related parcel of real estate not yet subject to a Mortgage, has a value (together with determined inclusive of any improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (i) any such real property estate subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver a first priority mortgage or deed of trust (subject only to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to Liens permitted by Section 7.3) in favor of the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest covering such real estate, in form and substance reasonably satisfactory to the Capital Stock of such new Subsidiary that is owned by any Loan PartyAdministrative Agent, (ii) deliver if reasonably requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real estate in an amount at least equal to the purchase price of such real estate (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent the certificates representing in connection with such Capital Stockmortgage or deed of trust, together with undated endorsements, in blank, executed and delivered by a duly authorized officer each of the relevant Loan Party, (iii) cause such new Subsidiary (A) foregoing in form and substance reasonably satisfactory to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iviii) 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. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.matters

Appears in 1 contract

Samples: Credit Agreement (International Home Foods Inc)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any Loan Party of the Subsidiary Guarantors (other than (v) Excluded Assets (as defined in the Guarantee and Collateral Agreement), (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g8.03(g), (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby Excluded Subsidiary and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebytype excluded from the Security Documents) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property to the extent required under the Guarantee and Collateral Agreement and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property to the extent required under the Guarantee and Collateral Agreement (with the priority required by the Intercreditor Agreementsubject to Permitted Liens), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicablelaw. (b) With Subject to the First Lien Intercreditor Agreement, with respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 3,000,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of the Subsidiary Guarantors (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g8.03(g) and (y) real property acquired by any Excluded Subsidiary), but excluding any Excluded Assets, promptly (i) execute and deliver a Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property subject to Permitted Liens, (ii) any if requested by the Administrative Agent, provide the Secured Parties with (x) title and extended coverage insurance covering such real property and insuring such Mortgage as a lien on the related Mortgaged Property, subject to which Liens permitted pursuant to Section 8.03, in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent) in form and substance reasonably acceptable to the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree have received evidence reasonably satisfactory to it that all premiums in its sole discretionrespect of such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid as well as a current ALTA survey thereof, together with a surveyor’s certificate reasonably acceptable to the Administrative Agent and the title insurance company and (y) execute any consents, affidavits, indemnities, environmental assessments or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such mortgage or deed of trust, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (iii) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the documents matters described above, which opinions shall be in form and instruments required under Section 5.1(ksubstance, and from counsel, reasonably satisfactory to the Administrative Agent, (iv) comply with the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Existing Credit Agreement Board of Governors of the Federal Reserve System), and provide the following documents: (including any legal opinions as A) a completed standard “life-of-loan” flood hazard determination form, (B) if the improvement(s) to the improved Mortgaged Property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent may Agent, (v) to the extent required by Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. 101-73, 000 Xxxx. 000, enacted August 9, 1989, or any other applicable law, provide an appraisal, and (vi) deliver such other documents as reasonably request)requested by the Administrative Agent. (c) With Subject to the First Lien Intercreditor Agreement, with respect to any new Domestic Restricted Subsidiary (other than any Immaterial an Excluded Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by the Borrower or any Loan Party of the Restricted Subsidiaries (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Restricted Subsidiary that ceases to be an Immaterial Excluded Subsidiary (and that is not a CFC Holding Company)and/or an Unrestricted Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such new Subsidiary that is owned by the Borrower or any Loan Partyof the Subsidiary Guarantors, (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Restricted Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and each Intercreditor Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement (subject to Permitted Liens) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Restricted Subsidiary, substantially in the form of Exhibit CI, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided that nothing contained in this Section 7.09(c) shall require a new Restricted Subsidiary to grant any Liens on any Excluded Assets. (d) With Subject to the First Lien Intercreditor Agreement, with respect to any new CFC Holding Company or “first-tier” Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party (whichof the Subsidiary Guarantors, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens and the First Lien Intercreditor Agreement) in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Borrower or any such Loan Party of the Restricted Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary Guarantor, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided that nothing contained in this Section 7.09 shall require a pledge of any Capital Stock constituting Excluded Assets. (e) Without limiting the foregoing, the Borrower shall not permit any of its Affiliates to be an obligor under any Indebtedness in respect of the Term Loan Agreement, the Second Lien Notes, any Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Debt unless such Affiliate also guaranties the Obligations hereunder. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, so long as the Term Loan Agreement, any Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Debt are outstanding, the further assurances required to be taken in this Section 7.09 with respect to the Administrative Agent’s security interest in any Term Loan Priority Collateral (including (A) the Capital Stock in or of a Subsidiary of a Loan Party, and (B) Mortgages with respect to any real property owned in fee of a Loan Party, shall be subject to the terms of the First Lien Intercreditor Agreement (or other applicable intercreditor agreement, as the case may be) and required only to the extent provided under the Term Loan Agreement, the Second Lien Notes, any Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Debt or Ratio Debt, as applicable, including the form and substance of any documentation related to or required to evidence the Administrative Agent’s security interest and the timing of delivery with respect thereto.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Roundy's, Inc.)

Additional Collateral, etc. (a) With respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Security Agreement or such other documents as the Collateral Agent or the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected (to the extent required by the applicable Security Document) second priority security interest in any such property (with subject only to the priority required by ABL/Term Loan Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreementand Subordination Agreement and Permitted Liens), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in Real Property (other than an Excluded Owned Real Property) acquired at any real property having a value (together with improvements thereof) of at least $10,000,000 acquired time after the Closing Date that is fee-owned by any Loan Party (including a Person or owned by any Subsidiary that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which after the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyClosing Date), within sixty (60) 90 days after the acquisition thereof (or such later date the creation or acquisition of, or the joinder of any Subsidiary as, a Subsidiary Guarantor which owns Real Property, as applicable), as may be extended by the Administrative Agent shall agree to in its sole reasonable discretion, (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property, along with the corresponding Real Property Deliverables, each in form and substance reasonably satisfactory to the Administrative Agent and the documents Collateral Agent, as may be necessary to create a valid, perfected and instruments required subsisting Lien, subject to Liens permitted under Section 5.1(k8.02, against such Real Property, (ii) provide the Lenders a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination indicating whether the Mortgaged Property is in a flood zone and (iii) if applicable, deliver to the Collateral Agent evidence of flood insurance as required by the Existing Credit Agreement National Flood Insurance Program as set forth in the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, each as amended and in effect, and such other information, documentation (including any legal opinions including, but not limited to, appraisals, environmental reports, and to the extent applicable, using commercially reasonable efforts, subordination agreements) and certifications, in each case, as may be reasonably requested by the Administrative Agent may reasonably request)or the Collateral Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by (or any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Wholly-Owned Domestic Subsidiary (other than an Immaterial Subsidiary) that becomes a Subsidiary Guarantor after the Closing Date), promptly, and in any event within 30 days of such creation or acquisition (or, in the case of any Wholly-Owned Domestic Subsidiary that is not a CFC Holding Company or becomes a Subsidiary of Guarantor, the date that such Subsidiary becomes a Foreign Subsidiary or a CFC Holding Company and Guarantor) (2) any existing Subsidiary that ceases as such date may be extended from time to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as time by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to this Agreement and the Guarantee Security Agreement and Collateral Agreement the other Loan Documents as the Administrative Agent or the Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first second priority security interest in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan PartyParty (subject, as to priority, only to Permitted Liens and, to the extent provided in the ABL/Term Loan Intercreditor Agreement, Permitted Liens in favor of the Revolving Facility Agent securing Revolving Facility Priority Collateral and, to the extent provided in the First Lien/Second Lien Intercreditor and Subordination Agreement, Permitted Liens in favor of the First Lien Agent), (ii) deliver to the Administrative Collateral Agent (or the Revolving Facility Agent or First Lien Agent, as applicable) the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party and (iii) cause such new Subsidiary Guarantor (A) to execute and deliver to the Administrative Agent and the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Administrative Agent or the Collateral Agent to become a party Subsidiary Guarantor and (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent Collateral Agent, for the benefit of the Secured Parties Parties, a perfected (if and to the extent required by such Security Document) second priority security interest with (subject to the priority required by ABL/Term Loan Intercreditor Agreement, the First Lien/Second Lien Intercreditor and Subordination Agreement and the Permitted Liens) in the Collateral described in the Guarantee and Collateral Security Agreement with respect to such new SubsidiarySubsidiary Guarantor, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may reasonably be required by the Guarantee and Collateral Security Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent and (C) to deliver to the Administrative Agent and the Collateral Agent a certificate of such SubsidiarySubsidiary Guarantor, substantially in the form of Exhibit Cthe certificate provided by the Loan Parties on the Closing Date pursuant to Section 6.01, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary that is owned directly by a Loan Party created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent or Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first second priority security interest (subject, as to priority, only to Permitted Liens and, to the extent provided in the Capital Stock ABL/Term Loan Intercreditor Agreement, Permitted Liens in favor of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (the Revolving Facility Agent securing Revolving Facility Priority Collateral and to the extent provided that in the First Lien/Second Lien Intercreditor and Subordination Agreement, Permitted Liens in favor of the First Lien Agent) in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary be required to be so pledged) and 100% of the total outstanding non-voting Capital Stock of such Excluded Foreign Subsidiary, and (ii) deliver to the Administrative Collateral Agent (or the Revolving Facility Agent or First Lien Agent, as applicable) the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party. (e) With respect to any new Non-Guarantor Restricted Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Excluded Foreign Subsidiary), promptly (i) execute and take deliver to the Administrative Agent and the Collateral Agent such other action amendments to this Agreement and the Security Agreement as the Collateral Agent or the Administrative Agent deems necessary or reasonably advisable to perfect grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected second priority security interest (subject, as to priority, only to Permitted Liens and, to the extent provided in the ABL/Term Loan Intercreditor Agreement, Permitted Liens in favor of the Revolving Facility Agent securing Revolving Facility Priority Collateral and to the extent provided in the First Lien/Second Lien Intercreditor and Subordination Agreement, Permitted Liens in favor of the First Lien Agent) in the Capital Stock of such Non-Guarantor Restricted Subsidiary that is owned by any Loan Party and (ii) deliver to the Collateral Agent (or the Revolving Facility Agent or First Lien Agent, as applicable) the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party. Each of the Lenders hereby authorize the Administrative Agent and the Collateral Agent to enter into any such amendments, modifications, or other changes to this Agreement or any of the other Loan Documents solely to implement the foregoing. (f) The Loan Parties shall (i) establish and maintain cash management services of a type and on terms reasonably satisfactory to the Agents at one or more of the banks set forth on Schedule 7.08(f)(each a “Cash Management Bank”) and (ii) except as otherwise provided under this Section 7.08(f), deposit or cause to be deposited promptly, and in any event no later than the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral, all collections (of a nature susceptible to a deposit in a bank account) and all other amounts received by any Loan Party in excess of $120,000 (including payments made by account debtors directly to any Loan Party) into a Cash Management Account. Within 45 days after the Closing Date, the Loan Parties shall, with respect to each Cash Management Account (other than Excluded Accounts), deliver to the Collateral Agent a Control Agreement with respect to such Cash Management Account. From and after the date that is 45 days following the Closing Date, the Loan Parties shall not maintain, and shall not permit any of their Restricted Subsidiaries to maintain, cash, Cash Equivalents or other amounts in any deposit account or securities account, unless the Collateral Agent shall have received a Control Agreement in respect of each such Cash Management Account (other than Excluded Accounts). So long as no Default or Event of Default has occurred and is continuing, Borrower may amend Schedule 7.08(f) to add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be reasonably satisfactory to the Collateral Agent and the First Lien Agent, and the Collateral Agent and the First Lien Agent shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) promptly, and in any event within 5 Business Days, following the opening of such Cash Management Account, each Loan Party and such prospective Cash Management Bank shall have executed and delivered to the Collateral Agent a Control Agreement. Each Loan Party shall close any of its Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event within 30 days of notice from the Collateral Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in the Collateral Agent’s reasonable judgment, or that the operating performance, funds transfer, or availability procedures or performance of such Cash Management Bank with respect to Cash Management Accounts or the Collateral Agent’s liability under any Control Agreement with such Cash Management Bank is no longer acceptable in the Collateral Agent’s reasonable judgment. (g) For the avoidance of any doubt, the Loan Parties shall have no obligation to grant a security interest thereinto the Collateral Agent in any Collateral that would constitute Excluded Assets.

Appears in 1 contract

Samples: Intercreditor Agreement (Alden Global Capital LLC)

Additional Collateral, etc. (a) With Subject to and consistent with the Security and Guarantee Principles, with respect to any property (to the extent included in the definition of Collateral) acquired at any time after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly within thirty (30) days of such acquisition (or ninety (90) days in the case of an acquisition by a Foreign Subsidiary that is a Loan Party), or such longer period as agreed to by the Collateral Agent in its sole discretion, (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee and Collateral Agreement applicable Security Documents or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable first priority security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Security Agreement or by other applicable law or as may reasonably be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With Subject to and consistent with the Security and Guarantee Principles, with respect to any fee interest in any real property Real Property (excluding any Leaseholds) having aacquired by a Loan Party after the Closing Date, if the aggregate fair market value (together with improvements thereof) of at least $10,000,000 5,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, Party,all interests in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby)Non-Mortgaged Real Property exceeds $30,000,000, within sixty ninety (6090) days after the acquisition thereof (or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) of the acquisition of such interest, (i) execute and deliver a MortgageMortgages, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Real Property,the Loan Parties’ interests in Real Property such that the fair market value (together with improvements thereof) of all Non-Mortgaged Real Property does not exceed $30,000,000, along with a corresponding UCC fixture filing for filing in the applicable jurisdiction, each in form and substance reasonably satisfactory to the Administrative Agent the documents Collateral Agent, as may be necessary to create a valid, perfected first and instruments required subsisting Lien, subject to liens permitted under Section 5.1(k9.3, against such Real Property, (ii) provide the Lenders with title and extended coverage insurance covering such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above in an amount at least equal to the fair market value of such Real Property (or such lesser amount as shall be specified by the Existing Credit Agreement Collateral Agent) together with title endorsements reasonably requested by the Collateral Agent, (iii) provide the Lenders with an ALTA survey thereofin respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to subsection (ii) above), together with a surveyor’s certification, (iv) such affidavits, certificates, instruments of indemnification and other items (including any a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the applicable title policy and endorsements referenced in clause (ii) above in respect of such interest in Real Property subject to an applicable Mortgage pursuant to clause (i) above, (v) deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Administrative Collateral Agent may reasonably request, including, without limitation, the enforceability, due authorization, execution and delivery of the applicable Mortgage, (vi) deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable Loan Party entering into the applicable Mortgage) subject to an applicable Mortgage pursuant to clause (i) above, and in the event any such Real Property or a portion thereof is located within an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Real Property or the applicable portion thereof; and (vii) such other information, documentation (including, but not limited to, appraisals, environmental reports, Table of Contents and to the extent applicable, using commercially reasonable efforts, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 9.3 against the Real Property covered by the applicable Mortgage pursuant to clause (i) above. (c) With Subject to and consistent with the Security and Guarantee Principles, with respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) Guarantor created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Party, within thirty (30) days after the of such creation or acquisition of such new Domestic Subsidiary (or ninety (90) days in the case of a Subsidiary Guarantor that is a Foreign Subsidiary), or such later date longer period as agreed to by the Administrative Collateral Agent shall agree to in its sole discretion) , (i) execute and deliver to the Administrative Collateral Agent such amendments to this Agreement and the Guarantee Security Documents and Collateral Agreement such comparable documentation or other Security Documents as the Administrative Collateral Agent deems reasonably necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary Guarantor that is owned by any Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital StockStock (if any), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party, Party (iii) cause such new Subsidiary Guarantor (Aa) to execute and deliver to the Collateral Agent (x) a Guarantor Joinder Agreement or such comparable documentation requested by the Collateral Agent to become a party Subsidiary Guarantor and guarantee the Obligations, (y) a joinder agreement to the Guarantee and Collateral Security Agreement, substantially in the form annexed thereto, or such comparable documentation or other Security Documents requested by the Collateral Agent, as applicable, (Bb) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the assets (other than Excluded Assets) of such new Subsidiary Guarantor, including the filing of UCC financing statements in such jurisdictions as may be required by the Security Agreement or comparable documentation or by other applicable law or as may be requested by the Collateral Agent and (c) to deliver to the Collateral Agent (i) a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and attachments and (ii) if reasonably requested by the Collateral Agent, a legal opinion from counsel to such new Subsidiary Guarantor in form and substance satisfactory to the Collateral Agent and (iv) if such new Subsidiary Guarantor owns real property with a fair market value of at least $5,000,000, within ninety (90) days of such party becoming a Subsidiary Guarantor (or such longer period as agreed to by the Collateral Agent in its sole discretion), deliver the documents required pursuant to Section 8.8(b) hereof. (d) Subject to and consistent with the Security and Guarantee Principles, with respect to any new Restricted Subsidiary which is an Excluded Foreign Subsidiary described in clause (i) of the definition of Excluded Foreign Subsidiary (other than an Immaterial Subsidiary) created or acquired after the Closing Date by any Loan Party, within ninety (90) days of such creation or acquisition, (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (entity; provided that in no event shall not more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Excluded Foreign Subsidiary shall be required to be so pledged) and , (ii) deliver to the Administrative Collateral Agent the certificates (if any) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer Authorized Officer of the relevant Loan Party and (iii) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such matters as the Collateral Agent may request. (e) With respect to any new Non-Guarantor Subsidiary created or acquired after the Closing Date by any Loan Party (but excluding any Excluded Foreign Subsidiary and any Non-Guarantor Subsidiary to the extent a pledge of the Capital Stock of such entity is prohibited by its Organizational Documents or requires the consent of any Person party thereto), within thirty (30) days of such creation or Table of Contents acquisition (or such longer period as agreed to by the Collateral Agent in its sole discretion), (i) execute and deliver to the Collateral Agent such Security Documents or amendments thereto as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens permitted hereunder) in the Capital Stock of such Non-Guarantor Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock (if any), together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the relevant Loan Party, (iii) cause such new Subsidiary Guarantor to deliver to the Collateral Agent a certificate of such Subsidiary Guarantor, substantially in the form of Exhibit M, with appropriate insertions and take attachments (including modifications based on the Security and Guarantee Principles), and (iv) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and covering such other action matters as the Administrative Collateral Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinmay request.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Ancestry.com LLC)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Borrower or any Loan Party of the Subsidiary Guarantors (other than (v) Excluded Assets (as defined in the Guarantee and Collateral Agreement), (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g8.03(g), (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby Excluded Subsidiary and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebytype excluded from the Security Documents) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property to the extent required under the Guaranty and Collateral Agreement and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property to the extent required under the Guaranty and Collateral Agreement (with the priority required by the Intercreditor Agreementsubject to Permitted Liens), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicablelaw. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 3,000,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of the Subsidiary Guarantors (other than (ix) any such real property subject to a Lien expressly permitted by Section 7.3(g8.03(g) and (y) real property acquired by any Excluded Subsidiary), but excluding any Excluded Assets, promptly (i) execute and deliver a Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property subject to Permitted Liens, (ii) any if requested by the Administrative Agent, provide the Secured Parties with (x) title and extended coverage insurance covering such real property and insuring such Mortgage as a first lien on the related Mortgaged Property, subject to which Permitted Liens, in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent) in form and substance reasonably acceptable to the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree have received evidence reasonably satisfactory to it that all premiums in its sole discretionrespect of such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid as well as a current ALTA survey thereof, together with a surveyor’s certificate reasonably acceptable to the Administrative Agent and the title insurance company and (y) execute any consents, affidavits, indemnities, environmental assessments or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such mortgage or deed of trust, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (iii) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the documents matters described above, which opinions shall be in form and instruments required under Section 5.1(ksubstance, and from counsel, reasonably satisfactory to the Administrative Agent, (iv) comply with the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Existing Credit Agreement Board of Governors of the Federal Reserve System), and provide the following documents: (including any legal opinions as A) a completed standard “life-of-loan” flood hazard determination form, (B) if the improvement(s) to the improved Mortgaged Property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent may Agent, (v) to the extent required by Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. 101-73, 000 Xxxx. 000, enacted August 9, 1989, or any other applicable law, provide an appraisal, and (vi) deliver such other documents as reasonably request)requested by the Administrative Agent. (c) With respect to any new Domestic Restricted Subsidiary (other than any Immaterial an Excluded Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by the Borrower or any Loan Party of the Restricted Subsidiaries (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Restricted Subsidiary that ceases to be an Immaterial Excluded Subsidiary (and that is not a CFC Holding Company)and/or an Unrestricted Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such new Subsidiary that is owned by the Borrower or any Loan Partyof the Subsidiary Guarantors, (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Restricted Subsidiary, as the case may be, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and each Intercreditor Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement (subject to Permitted Liens) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Restricted Subsidiary, substantially in the form of Exhibit CH, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided that nothing contained in this Section 7.09(c) shall require a new Restricted Subsidiary to grant any Liens on any Excluded Assets. (d) With respect to any new CFC Holding Company or “first-tier” Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party (whichof the Subsidiary Guarantors, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Borrower or any such Loan Party of the Restricted Subsidiaries (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided that nothing contained in this Section 7.09 shall require a pledge of any Capital Stock constituting Excluded Assets. (e) Without limiting the foregoing, the Borrower shall not permit any of its Affiliates to be an obligor under any Indebtedness in respect of the Revolving Credit Facility Agreement, the Second Lien Notes, any Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Debt unless such Affiliate also guaranties the Obligations hereunder.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Roundy's, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), below and (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralExcluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Lender does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent Lender deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, Lender a security interest in such property to the extent set forth in the Guarantee and Collateral Agreement and (ii) take all actions necessary or reasonably advisable to grant to the Administrative AgentLender a perfected first priority (or, for with respect to any property securing the benefit of Excluded Debt (other than the Secured PartiesHagen Debt), a perfected second priority) security interest in any such property (with the priority required by the Intercreditor Agreement)xxxxxrty, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableLender. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 500,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than real property acquired by any Excluded Foreign Subsidiary), promptly (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver a first priority mortgage, for the benefit of the Lender, covering such real property, (ii) if requested by the Lender, provide the Lenders with (A) title and extended coverage insurance covering such real property in an amount at least equal to the Administrative Agent purchase price of such real property (or such other amount as shall be reasonably specified by the documents Lender) as well as a current ALTA survey thereof, together with a surveyor's certificate and instruments required under Section 5.1(k(B) any consents or estoppels reasonably deemed necessary or advisable by the Lender in connection with such mortgage, each of the Existing Credit Agreement foregoing in form and substance reasonably satisfactory to the Lender and (including any iii) if requested by the Lender, deliver to the Lender legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance, and from counsel, reasonably request)satisfactory to the Lender. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement as the Administrative Agent Lender deems necessary or reasonably advisable to grant to the Administrative AgentLender, for the benefit of the Secured PartiesLender, a perfected first priority security interest (or, with respect to any property securing the Excluded Debt (other than the Hagen Debt and the M Data Debt), a perfected second priority) securixx xxterest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent Lender the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties Lender a perfected first priority (or, with respect to any property securing the Excluded Debt (other than the Hagen Debt), a perfected second priority) security interest with the priority required by the Intercreditor Agreement in the Collateral Cxxxxxeral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent Lender and (C) to deliver to the Administrative Agent Lender a certificate of such Subsidiary, substantially in the form of Exhibit EXHIBIT C, with appropriate insertions and attachments, and (iv) if requested by the Administrative AgentLender, deliver to the Administrative Agent Lender legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentLender. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or a is an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Lender such amendments to the Guarantee and Collateral Agreement as the Administrative Agent Lender deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLender, a perfected first priority security interest (or, with respect to any property securing the Excluded Debt (other than the Hagen Debt and the M Data Debt), a perfected second priority) securixx xxterest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent Lender the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of the Lender, desirable to perfect the Administrative Agent’s Lender's security interest therein, and (iii) if requested by the Lender, deliver to the Lender legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Lender.

Appears in 1 contract

Samples: Credit Agreement (Printcafe Software Inc)

Additional Collateral, etc. (a) [Reserved]. (b) With respect to any property fee interest in any Material Real Property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (bExcluded Real Property), within 90 days (cor such later date as may be agreed by the Administrative Agent) (i) or give notice of such acquisition to the Collateral Agent and promptly execute and deliver a second priority Mortgage (d) below, (x) any property subject to a Lien expressly liens permitted by Section 7.3(g)7.3) in favor of the Collateral Agent (or its agent or bailee, pursuant to the Intercreditor Agreement) for the benefit of the Secured Parties, covering such Real Property (y) so long as provided that no Mortgage nor survey shall be required if the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and Administrative Agent determines in consultation with the Borrower, Borrower that the cost costs of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is such Mortgage or survey are excessive in relation to the value of the security to be afforded thereby), (ii) if reasonably requested by the Collateral Agent (A) provide the Lenders with a lenders’ title insurance policy with extended coverage covering such Real Property in an amount at least equal to the purchase price of such Real Property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate unless the title insurance policy referred to above shall not contain an exception for any matter shown by a survey (except to the extent an existing survey has been provided and specifically incorporated into such title insurance policy), each in form and substance reasonably satisfactory to the Collateral Agent, (B) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary by the Collateral Agent, in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (C) provide to the Administrative Agent flood insurance certificates and evidence of flood hazard insurance if any portion of the improvements on the owned Property is currently or at any time in the future identified by the Federal Emergency Management Agency as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968 (and any amendment or successor act thereto) or otherwise being designated as a “special flood hazard area or part of a 100 year flood zone”, in an amount equal to 100% of the full replacement cost of the improvements; provided, however, that a portion of such flood hazard insurance may be obtained under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended and (iii) if requested by the Collateral Agent deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (c) With respect to any new Domestic Subsidiary (other than an Excluded Subsidiary) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any Subsidiary that ceases to be an Excluded Subsidiary) by any Loan Party, within 60 days (or such later date as may be agreed by the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly ) (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent reasonably deems necessary or reasonably advisable to grant to the Administrative Agent, Collateral Agent for the benefit of the Secured Parties, Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such property and new Subsidiary that is owned by such Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take all such actions necessary or reasonably advisable to grant to the Administrative Agent, Collateral Agent for the benefit of the Secured Parties, Parties a perfected security interest in any such property (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Intercreditor Agreement)Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Collateral Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by upon the Administrative reasonable request of the Collateral Agent, deliver to the Administrative Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory substance similar to the Administrative Agentopinions delivered at the Closing Date. (d) With respect to any Capital Stock of any new CFC Holding Company First Tier Foreign Subsidiary or Foreign Subsidiary Holding Company (other than Excluded Capital Stock) that is created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary)Party, within sixty (60) 60 days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as may be agreed by the Administrative Agent shall agree to in its sole discretion) Agent) (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary (other than any Excluded Capital Stock) that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Collateral Agent the certificates certificates, if any, representing such pledged Capital Stock (other than any Excluded Capital Stock), together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything in this Section 6.8 to the contrary, neither the Borrower nor any of its Restricted Subsidiaries shall be required to take any actions in order to perfect the security interest in the Collateral granted to the Collateral Agent for the ratable benefit of the Secured Parties under the laws of any jurisdiction outside the United States. (f) Notwithstanding the foregoing, to the extent any new Restricted Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to an acquisition permitted by Section 7.7, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary shall not be required to take the actions set forth in Section 6.8(c) or 6.8(d), as applicable, until the respective acquisition is consummated. (g) From time to time the Loan Parties shall execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Collateral Agent may reasonably request for the purposes implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of renewing the rights of the Secured Parties with respect to the Collateral as to which the Collateral Agent, for the ratable benefit of the Secured Parties, has a perfected Lien pursuant hereto or thereto, including, without limitation, filing any financing or continuation statements or financing change statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created thereby. Notwithstanding the foregoing, the provisions of this Section 6.8 shall not apply to assets as to which the Administrative Agent deems necessary (or its agent or bailee pursuant to the Intercreditor Agreement) and the Borrower shall reasonably advisable to perfect determine that the Administrative Agent’s costs and burdens of obtaining a security interest thereintherein or perfection thereof outweigh the value of the security afforded thereby.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Engility Holdings, Inc.)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property Property subject to a Lien expressly permitted by Section 7.3(f) or Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee Pledge and Collateral Agreement Security Agreements, the Canadian General Security Agreements or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee any Pledge and Collateral Security Agreement and any Canadian General Security Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Date by any a Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(f) or Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines)), in its reasonable discretion promptly, and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), any event within sixty (60) 30 days after the acquisition thereof thereof, (or such later date as the Administrative Agent shall agree to in its sole discretioni) execute and deliver a first priority Mortgage (subject to Permitted Liens) in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the Administrative purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) and (y) any consents or estoppels reasonably deemed necessary by the Collateral Agent the documents and instruments required under Section 5.1(k) in connection with such Mortgage, each of the Existing Credit Agreement foregoing in form and substance reasonably satisfactory to the Collateral Agent and (including any iii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions as relating to the Administrative Agent may matters described above, which opinions shall be in form and substance, and from counsel, reasonably request)satisfactory to the Collateral Agent. (c) With respect to any new Domestic U.S. or Canadian Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date Date, by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) and in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), event within thirty (30) 15 days after the such creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee Pledge and Collateral Agreement Security Agreements as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned directly by any a Loan Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant applicable Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee Guaranty and Collateral a Pledge and Security Agreement and/or to execute a Canadian General Security Agreement, as required by the Collateral Agent and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement Security Documents with respect to such new Subsidiary, including including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement any Security Document or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsCollateral Agent, and (iv) if requested by the Administrative Collateral Agent, deliver to the Administrative Collateral 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 Collateral Agent. (d) With respect to any new CFC Holding Company Subsidiary of the Parent organized in a jurisdiction other than the United States or Foreign Subsidiary Canada that is created or acquired after the Closing Date by a Loan Party, promptly, and in any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), event within sixty (60) 15 days after the such creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) acquisition, (i) execute and deliver to the Administrative Collateral Agent such amendments or supplements to the Guarantee Pledge and Collateral Agreement Security Agreements as the Administrative Collateral Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned directly by any such a Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Party, (ii) deliver to the Administrative Collateral Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant applicable Loan Party, and take such other action as may be necessary or, in the Administrative Agent deems necessary or reasonably advisable opinion of the Collateral Agent, desirable to perfect the Administrative Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent’s security interest therein, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.

Appears in 1 contract

Samples: Credit Agreement (Pope & Talbot Inc /De/)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by the Company or any Loan other Indenture Party (other than (wx) Excluded Assets, (y) any property described in paragraph (b), (c) or (d) below, below and (xz) any property subject to a Lien expressly permitted by Section 7.3(g6.2(j), (yn) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralo)) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Security Agreement or such the other documents Security Document (or execute new Security Documents) as the Administrative Agent Collateral Trustee deems reasonably necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to any Liens permitted under Section 6.2) in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be reasonably required by the Guarantee and Collateral Security Agreement (or other Security Document) or by law or as may be reasonably requested by the Administrative Agent and Collateral Trustee in its discretion (y) filing and recording of intellectual property security agreements with or as instructed by the United States Patent and Trademark Office and the United States Copyright Office, as applicableHolders). (b) With respect to any fee interest in any real property having owned or acquired by the Company or any other Indenture Party (other than (x) Excluded Assets and (y) any such real property (including improvements located on leased land) subject to any Liens permitted by Section 6.2), promptly (i) execute and deliver a first priority Mortgage, deed of trust or deed to secure debt, in favor of the Collateral Trustee, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Collateral Trustee, provide the Secured Parties with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Trustee) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Trustee in connection with such Mortgage, deed of trust or deed to secure debt, each of the foregoing in form and substance reasonably satisfactory to the Collateral Trustee and (iii) if requested by the Collateral Trustee, deliver to the Collateral Trustee local counsel opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Trustee; provided the Company and the other Indenture Parties shall not be required to mortgage any real property unless and until the value of all real property (together with improvements thereof) of at least exceeds $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns in which case all such real property shall be mortgaged). The Company and becomes a Loan Party pursuant the other Indenture Parties shall not be required to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request)leasehold mortgages. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or Capital Stock acquired after the Closing Date by the Company or any Loan other Indenture Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than Capital Stock of an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary Excluded Subsidiary) (and other than any such Capital Stock constituting Excluded Assets or that is not a CFC Holding Companysubject to Liens permitted by Section 6.2(n)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Trustee such amendments to the Guarantee and Collateral Security Agreement as the Administrative Agent Collateral Trustee reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the such Capital Stock of such new Subsidiary that is owned by any Loan PartyStock, (ii) deliver to the Administrative Agent Collateral Trustee the certificates certificates, if any, representing such Capital Stock, together with related undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the Company or the relevant Loan Indenture Party, (iii) in the case of any new Subsidiary that is not an Excluded Subsidiary, cause such new Subsidiary (A) to become a Subsidiary Guarantor and a party to this Indenture, the Guarantee Security Agreement, the Collateral Trust Agreement and Collateral Agreementany other Security Document to the extent applicable to such Subsidiary, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent Collateral Trustee for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee Security Agreement and the Collateral Trust Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be reasonably required by the Guarantee and Collateral Security Agreement or by law or as may be reasonably requested by the Administrative Agent Collateral Trustee and (C) to deliver to the Administrative Agent Collateral Trustee a certificate of such Subsidiary, substantially in the form of Exhibit CE, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative AgentCollateral Trustee, deliver to the Administrative Agent Collateral Trustee legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentCollateral Trustee. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Indenture (American Capital, LTD)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wA) any property described in paragraph (b), (c) or (dc) below, (xB) any property subject to a Lien expressly permitted by Section 7.3(g), (yC) so long as the ABL Fixed Obligations Payment Date has not occurred, any ABL Fixed Asset Priority Collateral as to which the ABL Controlling Fixed Asset Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (zD) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby, (E) any property that is Excluded Property (as defined in the Guarantee and Collateral Agreement) and (F) any real property)) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in any such property (with the priority required by the Intercreditor Agreement), including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.

Appears in 1 contract

Samples: Abl Credit Agreement (Upbound Group, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), below and (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralExcluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured PartiesParties (as defined in the Collateral Trust Agreement), does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Trustee and the Administrative Agent such amendments to agreements and documents, and take such other actions, as may be required by the terms and conditions of the Guarantee and Collateral Agreement Agreement, that the Collateral Trustee or such other documents as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured Parties, a security interest in such property to the extent required by the terms and conditions of the Guarantee and Collateral Agreement, and (ii) take all actions necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording Agent. Notwithstanding the foregoing, no such actions shall be required in respect of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property assets as to which the Administrative Agent determines, shall determine in the exercise of its reasonable discretion and in consultation with the Borrower, credit judgment that the cost costs of obtaining a security interest therein is Lien thereon are excessive in relation to the value of the security to be afforded thereby. (b) With respect to (i) any fee interest in any real property acquired in one or a series of transactions after the Closing Date by the Borrower or any other Loan Party (including any such real property owned by any new Subsidiary Guarantor acquired after the Closing Date and excluding any such real property owned by an Excluded Foreign Subsidiary), within sixty (60ii) subject to the related Loan Party obtaining the required landlord consent and other documentation (including, without limitation, recorded leases or recorded memoranda of leases) (provided that each Loan Party shall use commercially reasonable efforts to obtain such consent and other documentation), any ground lease interest in any real property acquired or leased (including any ground lease property interest owned by any new Subsidiary Guarantor acquired after the Closing Date or any ground lease property interest with respect to which a required landlord consent is granted after the Closing Date) in one or a series of transactions after the Closing Date by the Borrower or any other Loan Party, and (iii) the Snellville Property, to the extent a sale and leaseback transaction permitted under Section 7.10 is not consummated on or prior to September 1, 2015, no later than 90 days after the acquisition thereof date the applicable interest in real property is acquired (or with respect to the Snellville Property, November 30, 2015 and in each case or such later date as agreed to by the Administrative Agent shall agree to in its sole discretion) (1) execute and deliver a first priority Mortgage (or leasehold Mortgage, as applicable) in favor of the Collateral Trustee, for the benefit of the Priority Lien Secured Parties (as defined in the Collateral Trust Agreement), covering such real property or ground lease interest, (2) if requested by the Administrative Agent, provide the Collateral Trustee with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price or construction cost of such real property or ground lease interest (or such other amount as shall be reasonably specified by the Administrative Agent, but in no event in excess of the insurable value thereof) and (y) any consents, waivers or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage (or leasehold Mortgage, as applicable) and that the Borrower can obtain using commercially reasonable efforts, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (3) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the documents matters described above, which opinions shall be in form and instruments substance, and from counsel, reasonably satisfactory to the Administrative Agent and (4) comply with Part 1 of Schedule 6.13 with respect to such Mortgaged Property. Notwithstanding the foregoing, no such actions shall be required under Section 5.1(kin respect of such real property or ground lease interest having a Fair Market Value less than $1,000,000 or as to which (i) the Administrative Agent shall otherwise determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the Existing Credit Agreement security to be afforded thereby, or (including any legal opinions as ii) at the Administrative Agent’s discretion to the extent such real property is located in a flood zone; provided that the Administrative Agent may reasonably request)subsequently, upon giving notice to the Borrower, elect to no longer exclude real property previously excluded pursuant to this clause (ii) from the requirements set forth in this Section 6.10(b) and, upon such election, the Borrower shall comply with Part 1 of Schedule 6.13 with respect to Mortgaged Property as though such real property had been newly acquired on the date of such election. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary or an Immaterial Subsidiary (and that is not a CFC Holding Company)Subsidiary), within thirty (30) days after or any other Subsidiary designated by the creation or acquisition of such new Domestic Borrower to become a Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Guarantor, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent Collateral Trustee the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent Collateral Trustee for the benefit of the Secured Parties Lenders and the Administrative Agent a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CF, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no such actions shall be required in respect of such assets as to which the Administrative Agent shall determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the security to be afforded thereby. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or a is an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock and 100% of the total outstanding non-voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, as the case may be, and take such other action as may be necessary or, as reasonably determined by the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative AgentCollateral Trustee’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no such actions shall be required in respect of such assets as to which the Administrative Agent shall determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the security to be afforded thereby.

Appears in 1 contract

Samples: Credit Agreement (Carmike Cinemas Inc)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party Group Member (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y8.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) property acquired by any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyForeign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x1) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y2) filing using commercially reasonable efforts to deliver certificates evidencing the Capital Stock of any Foreign Subsidiary or the Capital Stock of any Issuer (as defined in the Guarantee and recording of intellectual property security agreements with Collateral Agreement) that is not a Subsidiary, in each case to the United States Patent and Trademark Office and extent included in the United States Copyright Office, as applicableCollateral. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 2,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Group Member (other than (iy) any such real property subject to a Lien expressly permitted by Section 7.3(g8.3(g) and (z) real property acquired by any Foreign Subsidiary), promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) any if requested by the Administrative Agent, provide the Secured Parties with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding CompanySubsidiary) created or acquired after the Closing Date by any Loan Party (which, for Group Member or in the purposes of this paragraph (c), shall include (1) event any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or Wholly Owned Subsidiary becomes a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))Wholly Owned Subsidiary, within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Table of Contents Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent the certificates representing such Capital StockStock (if certificated), together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CI, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or is a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) using commercially reasonable efforts, deliver to the Administrative Agent the certificates (if certificated) representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member or other documentation satisfactory to the Administrative Agent, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative Agent’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Lodgenet Entertainment Corp)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Restatement Date or with respect to any property or asset which becomes Collateral pursuant to the definition thereof after the Restatement Date or, in the case of inventory or equipment, any material Collateral moved after the Restatement Date by the Company or any other Loan Party (other than (w) any property Collateral described in paragraph paragraphs (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralthis Section) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, does not have a perfected Liensecurity interest, promptly (and, in any event, within 20 days following the date of such acquisition or designation) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable to grant grant, to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in such Collateral (other than any such property (with the priority required by the Intercreditor AgreementExcluded Perfection Assets), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent, the Collateral Agent and (y) filing and recording of intellectual property security agreements with or the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Trustee. (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Restatement Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any other Loan Party or which becomes Collateral pursuant to the definition thereof, promptly (whichand, for the purposes of this paragraph (c), shall include (1) in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretionacquisition) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) provide the Secured Parties with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee, (iii) deliver to the Administrative Agent the certificates representing such Capital StockAgent, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent Collateral Trustee 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, the Collateral Agent and the Collateral Trustee and (iv) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Company or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a material Environmental Liability. (dc) With respect to any new CFC Holding Company or Subsidiary (other than an Excluded Foreign Subsidiary or an Excluded Project Subsidiary, except for an Excluded Project Subsidiary the pledge of whose Equity Interests pursuant to the Security Documents would not cause a default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) created or acquired after the Closing Restatement Date by any Loan Party (which, for the purposes of this paragraph (d) paragraph, shall include any existing Subsidiary that becomes ceases to be an Excluded Foreign Subsidiary or an Excluded Project Subsidiary and any Equity Interests in an Excluded Project Subsidiary the pledge of which would no longer cause a CFC Holding default under the applicable Non-Recourse Indebtedness in respect of which it is an obligor) by the Company or a Foreign Subsidiaryany of the Subsidiaries, promptly (and, in any event, within 10 days following such creation or the date of such acquisition), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding new Subsidiary that are owned by the Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and Subsidiaries, (ii) deliver to the Administrative Agent Collateral Trustee the certificates certificates, if any, representing such pledged Capital StockEquity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyCompany or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary (A) to become a party to the Guarantee and Collateral Agreement (and provide Guarantees of the Secured Obligations hereunder), the Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office, the execution and delivery by all necessary Persons of Control Agreements and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Intellectual Property Security Agreement or by law or as may be requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee, if requested, 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, the Collateral Agent and the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Restatement Date by the Company or any of its Subsidiaries, promptly (and, in any event, within 10 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Equity Interests in such new Excluded Foreign Subsidiary that is owned by the Company or any of its Domestic Subsidiaries (provided that in no event shall more than 66% of the total outstanding voting Equity Interests in any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Trustee the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the Collateral Trustee, desirable to perfect the security interest of the Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and the Collateral Trustee, if requested, 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, the Collateral Agent and the Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Additional Collateral, etc. (a) With respect to any property Property (including any vessel as to which all or any portion of the purchase price has been funded with the proceeds of Loans) acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (other than (w) any property Property described in paragraph (b), (c) or (d) below, (x) any property Property subject to a Lien expressly permitted by Section subsection 7.3(g), (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation vessels acquired with the Borrower, that the cost proceeds of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby transactions permitted by subsection 7.2(b) and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateralleasehold interests in real property) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, does not have a perfected Lien, promptly (i) execute and deliver to the General Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the General Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Collateral Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the General Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableAgent. (bi) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 2,500,000 acquired after the Closing Date by the Borrower or any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) of its Subsidiaries (other than (i) any such real property subject to a Lien expressly permitted by Section subsection 7.3(g) ), and (ii) other than any such real property as to interest owned by the Acquired Washington Company, which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to shall be afforded therebygoverned by subsection 6.11), within sixty promptly (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionA) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) a first priority Mortgage in favor of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured PartiesLenders, a perfected first priority security interest in the Capital Stock of covering such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreementreal property, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the General Administrative Agent, deliver provide the Lenders with (x) title and extended coverage insurance covering such real property (other than Owned Marine Terminals) in an amount at least equal 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. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition purchase price of such new CFC Holding Company or Foreign Subsidiary real estate (or such later date other amount as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest therein.reasonably

Appears in 1 contract

Samples: Credit Agreement (Victory Finance Inc)

Additional Collateral, etc. (a) With respect to any personal property or Intellectual Property (other than assets expressly excluded from the Collateral pursuant to the Security Documents) located in the United States acquired or created after the Closing Date by any Loan Party (other than (w) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), ) and (y) so long as such Instruments, Certificated Securities, Securities and Chattel Paper referred to in the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost last sentence of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and this paragraph (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collaterala)) as to which the Administrative Collateral Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, Parties does not have a perfected Lien, promptly promptly, but in any case within 30 days (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such property to the Collateral Agent and execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably requests to grant to the Collateral Agent for the benefit of the Secured Parties a security interest in such Property and (ii) take all actions reasonably requested by the Collateral Agent to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in such property (with respect to property of a type owned by a Loan Party as of the Closing Date to the extent the Collateral Agent for the benefit of the Secured Parties, has a perfected security interest in such property as of the Closing Date), including, without limitation, the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent. Any Instrument, Certificated Security (other than in respect of the Capital Stock of any Subsidiary), Security or Chattel Paper in excess of $1,000,000 shall be promptly delivered to the Collateral Agent indorsed in a manner reasonably satisfactory to the Collateral Agent to be held as Collateral pursuant to the relevant Security Document. (b) With respect to any fee owned real property located in the United States having a value (together with improvements thereof) of at least $20,000,000 acquired after the Closing Date by any Loan Party (i) within 30 days of such acquisition, give notice of such acquisition to the Collateral Agent and, if requested by the Collateral Agent, reasonably promptly thereafter (A) execute and deliver a first priority Mortgage (subject to Liens permitted by Section 7.3 other than clause (cc) thereof) in favor of the Collateral Agent for the benefit of the Secured Parties, covering such real property (provided that no Mortgage, survey or title insurance shall be required or obtained if the Collateral Agent reasonably determines in consultation with the Borrower that the costs of obtaining such Mortgage or survey or title insurance are excessive in relation to the value of the security to be afforded thereby), (B) if a Mortgage is to be provided under subclause (i)(A) above and if reasonably requested by the Collateral Agent (1) provide the Lenders with a lenders’ title insurance policy with coverage and all required endorsements reasonably acceptable to the Collateral Agent covering such real property and fixtures in an amount at least equal to the purchase price of such real property and fixtures (or such lesser amount as shall be reasonably requested by the Collateral Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate (except to the extent an existing survey has been provided), each in form and substance reasonably satisfactory to the Collateral Agent, and (2) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (ii) if requested by the Collateral Agent deliver to the Collateral Agent legal opinions relating to the Mortgage described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. (c) With respect to (x) any new Domestic Subsidiary that is created or acquired after the Closing Date by any Loan Party or (y) any Unrestricted Subsidiary that becomes a Restricted Subsidiary after the Closing Date, promptly, but in any case within 30 days of such creation, acquisition or designation (which period may be extended by the Administrative Agent in its reasonable discretion), (i) give notice of such acquisition, creation or designation to the Collateral Agent and execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent reasonably deems necessary to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by such Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic Subsidiary, cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Collateral Agent for the benefit of the Secured Parties a perfected security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary (to the extent the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, has a perfected security interest in any such property (with the priority required by same type of Collateral as of the Intercreditor AgreementClosing Date), including (x) including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicableCollateral Agent. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (cd) With respect to any new Foreign Subsidiary directly owned by Holdings, a Borrower or a Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) that is created or acquired after the Closing Date by any Loan Party (whichParty, for the purposes of this paragraph (c)promptly, shall include (1) but in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), case within thirty (30) 30 days after the creation or acquisition of such new Domestic Subsidiary acquisition (or such later date as which period may be extended by the Administrative Agent shall agree to in its sole discretion) ), (i) give notice of such acquisition or creation to the Collateral Agent and, if requested by the Collateral Agent, execute and deliver to the Administrative Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Collateral Agent deems necessary or reasonably advisable in order to grant to the Administrative Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (to the extent required by the Security Documents and with the priority required by Section 4.17) in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Foreign Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that (A) in no event shall more than 65% of the total outstanding voting Capital Stock of (i) any such CFC Holding Company or Foreign Subsidiary and (ii) any FSHCO be required to be so pledged and (B) 100% of non-voting Capital Stock of (i) any Foreign Subsidiary and (ii) any FSHCO, if any, shall be required to be so pledged) and (ii) to the extent permitted by applicable law, deliver to the Administrative Collateral Agent the certificates certificates, if any, representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant such Loan Party, and take such other action as may be necessary or, in the reasonable opinion of the Collateral Agent, necessary to perfect or ensure appropriate priority the Lien of the Collateral Agent thereon. (e) Notwithstanding anything to the contrary in any Loan Document, this Section shall not apply with respect to any collateral to the extent the Administrative Agent deems necessary or has reasonably advisable determined that the value of such collateral to perfect which this Section would otherwise apply is insufficient to justify the Administrative Agent’s security interest thereindifficulty, time and/or expense of obtaining a perfected Lien therefrom.

Appears in 1 contract

Samples: Credit Agreement (Macquarie Infrastructure CO LLC)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section 7.3(g), below and (y) so long as the ABL Obligations Payment Date has not occurred, property acquired by any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralExcluded Foreign Subsidiary) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured PartiesParties (as defined in the Collateral Trust Agreement), does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Trustee and the Administrative Agent such amendments to agreements and documents, and take such other actions, as may be required by the terms and conditions of the Guarantee and Collateral Agreement Agreement, that the Collateral Trustee or such other documents as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured Parties, a security interest in such property to the extent required by the terms and conditions of the Guarantee and Collateral Agreement, and (ii) take all actions necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Lenders and the Administrative Agent and any other Priority Lien Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording Agent. Notwithstanding the foregoing, no such actions shall be required in respect of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property assets as to which the Administrative Agent determines, shall determine in the exercise of its reasonable discretion and in consultation with the Borrower, credit judgment that the cost costs of obtaining a security interest therein is Lien thereon are excessive in relation to the value of the security to be afforded thereby. (b) With respect to (i) any fee interest in any real property acquired in one or a series of transactions after the Closing Date by the Borrower or any other Loan Party (including any such real property owned by any new Subsidiary Guarantor acquired after the Closing Date and excluding any such real property owned by an Excluded Foreign Subsidiary) or (ii) subject to the related Loan Party obtaining the required landlord consent and other documentation (including, without limitation, recorded leases or recorded memoranda of leases) (provided that each Loan Party shall use commercially reasonable efforts to obtain such consent and other documentation), within sixty any ground lease interest in any real property acquired or leased (60including any ground lease property interest owned by any new Subsidiary Guarantor acquired after the Closing Date or any ground lease property interest with respect to which a required landlord consent is granted after the Closing Date) in one or a series of transactions after the Closing Date by the Borrower or any other Loan Party, no later than 45 days after the acquisition thereof date the applicable interest in real property is acquired (or such later date as agreed to by the Administrative Agent shall agree to in its sole discretion) (1) execute and deliver a first priority Mortgage (or leasehold Mortgage, as applicable) in favor of the Collateral Trustee, for the benefit of the Priority Lien Secured Parties (as defined in the Collateral Trust Agreement), covering such real property or ground lease interest, (2) if requested by the Administrative Agent, provide the Collateral Trustee with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price or construction cost of such real property or ground lease interest (or such other amount as shall be reasonably specified by the Administrative Agent, but in no event in excess of the insurable value thereof) and (y) any consents, waivers or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage (or leasehold Mortgage, as applicable) and that the Borrower can obtain using commercially reasonable efforts, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (3) if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)and (4) comply with Section 5.1(k)(iii) with respect to such Mortgaged Property. Notwithstanding the foregoing, no such actions shall be required in respect of such real property or ground lease interest having a Fair Market Value less than $1,000,000 or as to which the Administrative Agent shall otherwise determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the security to be afforded thereby. (c) With respect to any new Domestic Subsidiary (other than any (x) an Excluded Foreign Subsidiary, (y) an Immaterial Subsidiary, or (z) a non-Wholly Owned Subsidiary which is prohibited from becoming a Subsidiary Guarantor by the terms of any CFC Holding Company Requirement of Law (including any duty owed thereunder) or any Subsidiary of a Foreign Contractual Obligation binding on or applicable to such non-Wholly Owned Subsidiary or the holders of a CFC Holding Companyits Capital Stock) created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (c), shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary or an Immaterial Subsidiary (and that is not a CFC Holding Company)Subsidiary), within thirty (30) days after or any other Subsidiary designated by the creation or acquisition of such new Domestic Borrower to become a Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Guarantor, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent Collateral Trustee the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent Collateral Trustee for the benefit of the Secured Parties Lenders and the Administrative Agent a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit CF, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no such actions shall be required in respect of such assets as to which the Administrative Agent shall determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the security to be afforded thereby. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by any Loan Party Group Member (which, for the purposes of this paragraph (d) shall include other than by any existing Subsidiary Group Member that becomes a CFC Holding Company or a is an Excluded Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by any such Loan Party Group Member (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock and 100% of the total outstanding non-voting Capital Stock of any such CFC Holding Company or Foreign new Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member, as the case may be, and take such other action as may be necessary or, as reasonably determined by the Administrative Agent deems necessary or reasonably advisable Agent, desirable to perfect the Administrative AgentCollateral Trustee’s security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no such actions shall be required in respect of such assets as to which the Administrative Agent shall determine in the exercise of its reasonable credit judgment that the costs of obtaining a Lien thereon are excessive in relation to the value of the security to be afforded thereby.

Appears in 1 contract

Samples: Credit Agreement (Carmike Cinemas Inc)

Additional Collateral, etc. (a) With respect to any property Property acquired after the Closing Date by any Loan Party Subsidiary (other than (wx) any real property or any Property described in paragraph (b)c) of this Section, (c) or (d) below, (xy) any property Property subject to a Lien expressly permitted by Section 7.3(g), (y6.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded therebyProperty acquired by an Excluded Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property Property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)Property, including (x) without limitation, the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (y) filing and recording of intellectual property security agreements with the United States Patent and Trademark Office and the United States Copyright Office, as applicablelaw. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 1,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) Subsidiary (other than (i) any such real property owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted by Section 7.3(g6.3(g)), promptly (i) execute and deliver a first priority Mortgage in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Subsidiary (other than any Immaterial an Excluded Foreign Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (c)paragraph, shall include (1) any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company)Excluded Foreign Subsidiary), within thirty (30) days after by the creation Borrower or acquisition any of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any Loan Partyof its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsementsstock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, Agreement and (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including including, without limitation, the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachmentsAgent, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any new CFC Holding Company or Excluded Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any Loan Party of its Subsidiaries (which, for the purposes of this paragraph (d) shall include other than any existing Subsidiary that becomes a CFC Holding Company or a Excluded Foreign SubsidiarySubsidiaries), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or reasonably advisable in order to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign new Subsidiary that is owned by the Borrower or any such Loan Party of its Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent the certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent deems necessary or reasonably advisable to perfect thereon, and (iii) if requested by the Administrative Agent’s security interest therein, 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.

Appears in 1 contract

Samples: Credit Agreement (Iconix Brand Group, Inc.)

Additional Collateral, etc. (a) With respect to any property acquired after the Closing Date by any Loan Party (other than (wx) any property described in paragraph (b), (c) or (d) below, (xy) any property subject to a Lien expressly permitted by Section 7.3(g), (y6.3(g) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby and (z) any property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL Priority CollateralIntellectual Property) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost Borrowers reasonably believe has a fair market value not in excess of obtaining a security interest therein is excessive $5,000,000 in relation to the value of the security to be afforded therebyaggregate) as to which the Administrative Agent, for the ratable benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and U.S. Collateral Agreement Agreement, the Foreign Collateral Agreements, the Foreign Pledge Agreements or such other documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected first priority security interest in any such property (with the priority required by the Intercreditor Agreement)property, including (x) the filing of documents (including Uniform Commercial Code financing statements and Intellectual Property Security Agreements) in such jurisdictions as may be required by the Guarantee and U.S. Collateral Agreement Agreement, the Foreign Collateral Agreements or the Foreign Pledge Agreements or by law or as may be requested by the Administrative Agent Agent; provided, however, that, with respect to the grant or perfection of a security interest to the Administrative Agent, for the ratable benefit of the Secured Parties, in any such property of any Loan Party constituting Capital Stock of any non-Guarantor Subsidiary, no Loan Party shall be required to execute and (y) filing and recording deliver any document or take any actions in the jurisdiction of intellectual property security agreements with organization of such non-Guarantor Subsidiary, unless such jurisdiction of organization is also the United States Patent and Trademark Office and the United States Copyright Office, as applicablejurisdiction of organization of any Loan Party. (b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $10,000,000 acquired after the Closing Date by any Loan Party (including a Person that owns such real property and becomes a Loan Party pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g6.3(g)), promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, covering such real property, (ii) any if requested by the Administrative Agent, provide the Lenders with (A) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as to which shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent determinesin connection with such Mortgage, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value each of the security foregoing in form and substance reasonably satisfactory to be afforded thereby), within sixty (60) days after the acquisition thereof (or such later date as the Administrative Agent shall agree to in its sole discretionand (iii) execute and if requested by the Administrative Agent, deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as of counsel to the Loan Parties relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent may reasonably request)Agent. (c) With respect to any new Domestic Material Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (whichGroup Member, for the purposes of this paragraph (c), shall include (1) and with respect to any existing Immaterial Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic new Material Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases due to be an Immaterial Subsidiary (and that is not a CFC Holding Company)), within thirty (30) days after the creation or acquisition of such a new Domestic Subsidiary (or such later date as the Administrative Agent shall agree due to an Investment in its sole discretion) a Subsidiary that was previously an Immaterial Subsidiary, or otherwise: (i) execute and deliver to the Administrative Agent such amendments to the Guarantee Guaranty, the U.S. Collateral Agreement, the Foreign Collateral Agreements and Collateral Agreement the Foreign Pledge Agreements as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Material Subsidiary that is owned by any Loan PartyGroup Member, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, stock powers or foreign equivalent in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyGroup Member to the extent such actions are permitted by, and enforceable under, applicable law and, if applicable, in accordance with applicable local law and practice, a copy of each register of Capital Stock pledged pursuant to the U.S. Collateral Agreement, any Foreign Collateral Agreement or any Foreign Pledge Agreement, in each case, evidencing the registration in such register of the first priority security interest of the Administrative Agent, for the ratable benefit of the Secured Parties, and each promissory note (if any) pledged to the Administrative Agent pursuant to the U.S. Collateral Agreement, any Foreign Collateral Agreement or any Foreign Pledge Agreement, in each case, endorsed (without recourse) in blank (or accompanied by an executed transfer form or foreign equivalent thereof in blank) by the pledgor thereof, including the Intercompany Note, (iii) cause such new Material Subsidiary (A) to become a party to the Guarantee and Guaranty, the U.S. Collateral Agreement, the Foreign Collateral Agreements and the Foreign Pledge Agreements, as applicable, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the ratable benefit of the Secured Parties a perfected first priority security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee U.S. Collateral Agreement, the Foreign Collateral Agreements and Collateral Agreement the Foreign Pledge Agreements with respect to such new Subsidiary, including the filing of documents (including Uniform Commercial Code financing statements statements) in such jurisdictions as may be required by the Guarantee and U.S. Collateral Agreement Agreement, the Foreign Collateral Agreements or the Foreign Pledge Agreements or by law or as may be requested by the Administrative Agent Agent; provided, however, that, with respect to the grant or perfection of a security interest to the Administrative Agent, for the ratable benefit of the Secured Parties, in any property of such new Material Subsidiary constituting Capital Stock of any non-Guarantor Subsidiary, such new Material Subsidiary shall not be required to execute and deliver any document or take any actions in the jurisdiction of organization of such non-Guarantor Subsidiary, unless such jurisdiction of organization is also the jurisdiction of organization of any Loan Party (including such new Material Subsidiary) and (C) to deliver to the Administrative Agent a certificate of such Material Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions of counsel to the Loan Parties relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) With respect to any Subsidiary identified as a new CFC Holding Company IP Subsidiary or Foreign new Material Subsidiary created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiarypursuant to Section 5.2(b), promptly, and in any event within sixty (60) 20 days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date other period as the Administrative Agent shall agree to set forth in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agenteach applicable Security Document, for the benefit of the Secured Partiestake all actions, a perfected first priority security interest in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be if any, required to be so pledgedtaken with respect to such Subsidiary in order to satisfy the other requirements of this Section 5.9 with respect to such Subsidiary. (e) and In the event that any Group Member develops or acquires (iidirectly or in connection with an Investment permitted under Section 6.7) deliver any Intellectual Property that is or is reasonably anticipated by the Borrowers to be material to the Administrative Agent business or operations of the certificates representing Group Members, except as prohibited by Requirements of Law or resulting in material adverse tax consequences, ensure that such pledged Capital StockIntellectual Property is, together with undated stock powersas promptly as practical after such development or acquisition, in blank, executed and delivered owned by a duly authorized officer of the relevant Loan Party, and take such other action as the Administrative Agent deems necessary or reasonably advisable to perfect the Administrative Agent’s security interest thereinParty organized in an IP Qualified Jurisdiction.

Appears in 1 contract

Samples: Credit Agreement (AVG Technologies N.V.)

Additional Collateral, etc. (a) With respect to any property Collateral acquired after the Closing Date by any Loan Party (other than (w) or with respect to any property described or asset which becomes Collateral pursuant to the definition thereof after the Closing Date, promptly (and, in paragraph (b)any event, (cA) with respect to any Deposit Account, Securities Account or (d) belowCommodities Account, (x) any property subject within the time period set forth in the second paragraph of Section 5.10 applicable to a Lien expressly permitted by Section 7.3(g)such Deposit Account, (y) so long as the ABL Obligations Payment Date has not occurred, any ABL Priority Collateral as to which the ABL Representative determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby Securities Account or Commodities Account and (zB) with respect to any other Collateral or any other property (oror asset which becomes Collateral, so long as within 20 Business Days following the ABL Obligations Payment Date has not occurred, any property other than ABL Priority Collateraldate of such acquisition or designation) as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement or such other documents Security Documents as the Administrative Collateral Agent or the Collateral Trustee, as the case may be, deems necessary or reasonably advisable to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a security interest in such property Collateral and (ii) take all actions necessary or reasonably advisable requested by the Administrative Agent to grant to the Administrative AgentCollateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest in such Collateral (other than any such property Excluded Perfection Assets and, except with respect to Pledged Securities in the possession of the Collateral Trustee, subject to Permitted Liens, and in respect of Pledged Securities in the possession of the Collateral Trustee, the Permitted Liens set forth in clause (g) of the definition thereof and with the priority required by the Intercreditor Agreementrespect to any other Priority Lien Obligations), including (x) the filing of Uniform Commercial Code UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee (it being understood and agreed that no Control Agreements shall be required pursuant to this Section 5.09(a) in respect of any Counterparty Accounts). Notwithstanding anything set forth herein or in any other Loan Document to the contrary, this Section 5.09(a) shall not apply to Intellectual Property Collateral acquired after the Closing Date or with respect to any property or asset which becomes Intellectual Property Collateral pursuant to the definition of Collateral after the Closing Date (y) filing it being agreed and recording understood that such Intellectual Property Collateral shall be subject to the applicable provisions of intellectual property security agreements with the United States Patent Guarantee and Trademark Office and the United States Copyright Office, as applicableCollateral Agreement). (b) With respect to any fee interest in any Collateral consisting of real property having a value (together with improvements thereof) or any lease of at least $10,000,000 Collateral consisting of real property acquired or leased after the Closing Date by the Borrower or any other Loan Party (including a Person that owns such real property and or which becomes a Loan Party Collateral pursuant to this Section 6.10) (other than (i) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (ii) any real property as to which the Administrative Agent determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to the value of the security to be afforded thereby), within sixty (60) days after the acquisition definition thereof (or such later date as the Administrative Agent shall agree to in its sole discretion) execute and deliver to the Administrative Agent the documents and instruments required under Section 5.1(k) of the Existing Credit Agreement (including any legal opinions as the Administrative Agent may reasonably request). (c) With respect to any new Domestic Subsidiary (other than any Immaterial Subsidiary, any CFC Holding Company or any Subsidiary of a Foreign Subsidiary or of a CFC Holding Company) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (cExcluded Perfection Assets), shall include promptly (1) and, in any existing Subsidiary (other than an Immaterial Subsidiary) that becomes a Domestic Subsidiary that is not a CFC Holding Company or a Subsidiary of a Foreign Subsidiary or a CFC Holding Company and (2) any existing Subsidiary that ceases to be an Immaterial Subsidiary (and that is not a CFC Holding Company))event, within thirty (30) 60 days after following the creation or acquisition date of such new Domestic Subsidiary (acquisition or such later date longer period as consented to by the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to a first priority Mortgage in favor of the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative AgentTrustee, for the benefit of the Secured Parties, a perfected first priority security interest covering such real property and complying with the provisions herein and in the Capital Stock of such new Subsidiary that is owned by any Loan PartySecurity Documents, (ii) provide the Secured Parties with (A) title and extended coverage insurance (or, if approved by the Administrative Agent in its sole discretion, a UCC title insurance policy) covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent, the Collateral Agent or the Collateral Trustee, which may be the value of the generation assets, if applicable, situated thereon), together with such endorsements as are reasonably required by the Administrative Agent, the Collateral Agent or the Collateral Trustee and are obtainable in the State in which such Mortgaged Property is located, as well as a current ALTA survey thereof complying with the requirements set forth in Schedule 5.09(b) and all of the other provisions herein and in the Security Documents, together with a surveyor’s certificate and (B) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent, the Collateral Agent or the Collateral Trustee in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee, (iii) if any such Collateral (other than any Excluded Perfection Assets) consisting of fee-owned real property is required to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because it is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party policy of flood insurance that (1) covers such Collateral and (2) is written in an amount reasonably satisfactory to the Guarantee and Collateral AgreementAdministrative Agent, (B) to take such actions necessary or reasonably advisable to grant to the Administrative Agent for the benefit a “life of the Secured Parties a perfected security interest with the priority required by the Intercreditor Agreement in the Collateral described in the Guarantee and Collateral Agreement loan” standard flood hazard determination with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) a confirmation that the Borrower or such other Loan Party has received the notice requested pursuant to deliver to Section 208(e)(3) of Regulation H of the Administrative Agent a certificate of such SubsidiaryBoard, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee 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, the Collateral Agent and the Collateral Trustee and (v) deliver to the Administrative Agent a notice identifying the consultant’s reports, environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such real property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could, or to determine that the operations on any such real property included in such Collateral is in compliance with Environmental Law except to the extent any non-compliance could not, reasonably be expected to result in a material Environmental Liability. (dc) With respect to any new CFC Holding Company Subsidiary (other than an Unrestricted Subsidiary or Foreign Subsidiary an Excluded Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d) Section 5.09(c), shall include any existing Subsidiary that becomes a CFC Holding Company ceases to be an Unrestricted Subsidiary, an Excluded Foreign Subsidiary or a Foreign an Excluded Project Subsidiary) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 Business Days following such creation or the date of such acquisition), within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or reasonably advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a valid, perfected first priority security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the Collateral Trustee the certificates, if any, representing such Equity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary that is not an Excluded Subsidiary or an Unrestricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement to, among other things, provide Guarantees of the Guaranteed Obligations hereunder, the Collateral Trust Agreement and the Intellectual Property Security Agreements and (B) to take such actions necessary or reasonably requested by the Administrative Agent to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected (subject to the limitations set forth in Section 3.19) first priority security interest (except with respect to Pledged Securities, subject to Permitted Liens, and in respect of Pledged Securities, the Permitted Liens in clause (g) of the definition thereof) in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary that is not an Excluded Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office (but not in any intellectual property offices in any jurisdiction outside the United States), the execution and delivery by all necessary Persons of Control Agreements (other than with respect to any Counterparty Accounts) and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral Trustee and (iv) deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee, if reasonably requested, 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, the Collateral Agent and the Collateral Trustee. (d) With respect to any new Excluded Foreign Subsidiary (other than an Unrestricted Subsidiary or an Excluded Subsidiary pursuant to clause (ii) or (iii) of the definition thereof that is a subsidiary of an Excluded Foreign Subsidiary) created or acquired after the Closing Date by the Borrower or any of its Subsidiaries, promptly (and, in any event, within 20 Business Days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent, the Collateral Agent and the Collateral Trustee such amendments to the Guarantee and Collateral Agreement as the Administrative Agent, the Collateral Agent or the Collateral Trustee deems necessary or advisable in order to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of Equity Interests in such CFC Holding Company or new Excluded Foreign Subsidiary that is directly owned by the Borrower or any such Loan Party of its Domestic Subsidiaries (provided that in no event shall more than 6566% of the total outstanding voting Capital Stock of first-tier Equity Interests in any such CFC Holding Company or new Excluded Foreign Subsidiary be required to be so pledged) and ), (ii) deliver to the Administrative Agent Collateral Trustee the certificates representing such pledged Capital StockEquity Interests, together with undated instruments of transfer or stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan PartyBorrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, the Collateral Agent deems necessary or reasonably advisable the Collateral Trustee, desirable to perfect the security interest of the Collateral Trustee thereon and (iii) deliver to the Administrative Agent’s security interest therein, the Collateral Agent and the Collateral Trustee, if reasonably requested, legal opinions (which may be delivered by in-house counsel if admitted in the relevant jurisdiction) relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Collateral Trustee.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

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