Additional Collateral; Further Assurances; Etc. (a) Subject to applicable law, each Credit Party shall, unless the Required Lenders otherwise consent, cause each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party to the Guaranty and Collateral Agreement and, if same has not been terminated in accordance with its terms, the Intercreditor Agreement) by executing a Joinder Agreement in substantially the form set forth as Exhibit M hereto, in each case with such changes as may be reasonably requested by or satisfactory to the Administrative Agent (each, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any property of such Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c). (b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Documents or other security documents as the Administrative Agent shall reasonably request. (c) Within 60 days following the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion). (d) Holdings will, and will cause each Subsidiary that, after the Effective Date, provides security, directly or indirectly, under the First Lien Credit Documents (or any Permitted Refinancing Indebtedness incurred in respect thereof) to pledge its assets that secure the obligations under the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective security interests pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness. (e) Holdings will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement. (f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (g) Holdings and the Borrower agree that each action required by clauses (d) through (f) of this Section 10.10 shall be completed as soon as possible, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.10. (h) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect to the security interests created under the First Lien Credit Documents, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. (i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties (other than the Original Mortgage Properties and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereof.
Appears in 2 contracts
Samples: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Additional Collateral; Further Assurances; Etc. (a) Subject Each Borrower and each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, but excluding any Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), will, grant to applicable lawthe Collateral Agent for the benefit of the Secured Creditors security interests in any Collateral owned by such Borrower and such Restricted Subsidiaries as are not covered by the original Security Documents and as may be reasonably requested from time to time by the Administrative Agent, each Credit Party shall, unless the Collateral Agent or the Required Lenders otherwise consent(collectively, cause each as may be amended, modified or supplemented from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and (subject to exceptions as are reasonably acceptable to the Administrative Agent) shall constitute, upon taking all necessary perfection action valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights in any jurisdiction and by equitable principles (regardless of its whether enforcement is sought in equity or at law)), superior to and prior to the rights of all third Persons and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full.
(b) With respect to any person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiaries (Subsidiary, but excluding any Excluded Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), the applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, any Inactive as applicable, shall promptly (i) cause such new Domestic Subsidiary (A) to execute a joinder agreement to this Agreement in form and any Agreed Non-substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty set forth herein to join as a Guarantor Subsidiaryand a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) formed or acquired (or which first becomes if such a new Wholly-Owned Domestic Subsidiary owns any Collateral, cause such new Wholly-Owned Domestic Subsidiary to take all actions necessary or ceases advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien in the Collateral created by the applicable Security Document to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party duly perfected to the Guaranty and Collateral Agreement and, if same has not been terminated extent required by such agreement in accordance with its termsall applicable Requirements of Law, including the Intercreditor Agreement) by executing a Joinder Agreement filing of financing statements in substantially the form set forth as Exhibit M hereto, in each case with such changes jurisdictions as may be reasonably requested by the Administrative Agent or satisfactory the Collateral Agent; and (ii) at the request of the Administrative Agent, deliver to the Administrative Agent (eacha signed copy of an opinion, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed addressed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Lenders, in any property of such counsel to the Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required Parties reasonably acceptable to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent as to such matters set forth in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(bthis Section 9.12(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Documents or other security documents as the Administrative Agent shall may reasonably request.
(c) Within 60 days following Each of the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion).
(d) Holdings will, and will cause each Subsidiary that, after the Effective Date, provides security, directly or indirectly, under the First Lien Credit Documents (or own any Permitted Refinancing Indebtedness incurred in respect thereof) to pledge its assets that secure the obligations under the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective security interests pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness.
(e) Holdings will, and will cause each of the other Credit Parties toCollateral will, at the expense of Holdings and the BorrowerCompany, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchersAgent, invoicespromptly, schedules, confirmatory assignments, financing statements, transfer endorsements, powers upon the reasonable request of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower willCollateral Agent, at their own Company’s expense, provide any document or instrument supplemental to or confirmatory of the Security Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent appraisals which satisfy or the Collateral Agent reasonably necessary for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative AgentSecurity Document.
(gd) Holdings and Each of the Borrower agree Credit Parties agrees that each action required by clauses (da) through (fc) of this Section 10.10 9.12 shall be completed as soon as possiblereasonably practicable, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, but in no event later than 45 ninety (90) days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, Collateral Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lendersshall otherwise agree), as the case may be); provided that in no event will Holdings or any of its Subsidiaries the Credit Parties be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.109.12.
(he) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect The Company shall be entitled, upon written request to the security interests created under the First Lien Credit DocumentsAdministrative Agent, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, however, in the case of have any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of Credit Party released from its obligations (x) as a Borrower under the Bridge Loan this Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not Documents to which it is a party, and to have all liens and security interests granted by such Subsidiary, if (x)(A) such Person ceases to be required a Restricted Subsidiary as a result of a transaction permitted hereunder, (B) such Person ceases to grant Mortgages with respect to any Original Mortgage Tax State Property andbe a Restricted Subsidiary or (C) such Subsidiary is an Immaterial Subsidiary and (y), if such Subsidiary is a Borrower, all Loans and other Obligations of such Borrower have been paid in the case of any Real Properties (other than the Original Mortgage Properties full or have been assumed by another Borrower on terms and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured conditions satisfactory to the maximum principal thereofAdministrative Agent.
Appears in 1 contract
Additional Collateral; Further Assurances; Etc. (a) Subject Each Borrower and each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, but excluding any Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the CHAR1\0000000x0 ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), will, grant to applicable lawthe Collateral Agent for the benefit of the Secured Creditors security interests in any Collateral owned by such Borrower and such Restricted Subsidiaries as are not covered by the original Security Documents and as may be reasonably requested from time to time by the Administrative Agent, each Credit Party shall, unless the Collateral Agent or the Required Lenders otherwise consent(collectively, cause each as may be amended, modified or supplemented from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and (subject to exceptions as are reasonably acceptable to the Administrative Agent) shall constitute, upon taking all necessary perfection action valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights in any jurisdiction and by equitable principles (regardless of its whether enforcement is sought in equity or at law)), superior to and prior to the rights of all third Persons and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full.
(b) With respect to any person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiaries (Subsidiary, but excluding any Excluded Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), the applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, any Inactive as applicable, shall promptly (i) cause such new Domestic Subsidiary (A) to execute a joinder agreement to this Agreement in form and any Agreed Non-substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty set forth herein to join as a Guarantor Subsidiaryand a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) formed or acquired (or which first becomes if such a new Wholly-Owned Domestic Subsidiary owns any Collateral, cause such new Wholly-Owned Domestic Subsidiary to take all actions necessary or ceases advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien in the Collateral created by the applicable Security Document to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party duly perfected to the Guaranty and Collateral Agreement and, if same has not been terminated extent required by such agreement in accordance with its termsall applicable Requirements of Law, including the Intercreditor Agreement) by executing a Joinder Agreement filing of financing statements in substantially the form set forth as Exhibit M hereto, in each case with such changes jurisdictions as may be reasonably requested by the Administrative Agent or satisfactory the Collateral Agent; and (ii) at the request of the Administrative Agent, deliver to the Administrative Agent (eacha signed copy of an opinion, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed addressed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Lenders, in any property of such counsel to the Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required Parties reasonably acceptable to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent as to such matters set forth in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(bthis Section 9.12(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Documents or other security documents as the Administrative Agent shall may reasonably request.
(c) Within 60 days following Each of the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion).
(d) Holdings will, and will cause each Subsidiary that, after the Effective Date, provides security, directly or indirectly, under the First Lien Credit Documents (or own any Permitted Refinancing Indebtedness incurred in respect thereof) to pledge its assets that secure the obligations under the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective security interests pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness.
(e) Holdings will, and will cause each of the other Credit Parties toCollateral will, at the expense of Holdings and the BorrowerCompany, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchersAgent, invoicespromptly, schedules, confirmatory assignments, financing statements, transfer endorsements, powers upon the reasonable request of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower willCollateral Agent, at their own Company’s expense, provide any document or instrument supplemental to or confirmatory of the Security Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent appraisals which satisfy or the Collateral Agent reasonably necessary for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative AgentSecurity Document.
(gd) Holdings and Each of the Borrower agree Credit Parties agrees that each action required by clauses (da) through (fc) of this Section 10.10 9.12 shall be completed as soon as possiblereasonably practicable, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, but in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.10.
(h) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect to the security interests created under the First Lien Credit Documents, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties (other than the Original Mortgage Properties and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereof.ninety CHAR1\0000000x0
Appears in 1 contract
Additional Collateral; Further Assurances; Etc. (a) Subject Each Borrower and each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, but excluding any Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), will, grant to applicable lawthe Collateral Agent for the benefit of the Secured Creditors security interests in any Collateral owned by such Borrower and such Restricted Subsidiaries as are not covered by the original Security Documents and as may be reasonably requested from time to time by the Administrative Agent, each Credit Party shall, unless the Collateral Agent or the Required Lenders otherwise consent(collectively, cause each as may be amended, modified or supplemented from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and (subject to exceptions as are reasonably acceptable to the Administrative Agent) shall constitute, upon taking all necessary perfection action valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights in any jurisdiction and by equitable principles (regardless of its whether enforcement is sought in equity or at law)), superior to and prior to the rights of all third Persons and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full.
(b) With respect to any person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiaries (Subsidiary, but excluding any Excluded Immaterial Subsidiary (unless such Subsidiary is a Guarantor under the ABL Credit Facility or has otherwise been designated as a Guarantor hereunder by the Company), the applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, any Inactive as applicable, shall promptly (i) cause such new Domestic Subsidiary (A) to execute a joinder agreement to this Agreement in form and any Agreed Non-substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty set forth herein to join as a Guarantor Subsidiaryand a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) formed or acquired (or which first becomes if such a new Wholly-Owned Domestic Subsidiary owns any Collateral, cause such new Wholly-Owned Domestic Subsidiary to take all actions necessary or ceases advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien in the Collateral created by the applicable Security Document to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party duly perfected to the Guaranty and Collateral Agreement and, if same has not been terminated extent required by such agreement in accordance with its termsall applicable Requirements of Law, including the Intercreditor Agreement) by executing a Joinder Agreement filing of financing statements in substantially the form set forth as Exhibit M hereto, in each case with such changes jurisdictions as may be reasonably requested by the Administrative Agent or satisfactory the Collateral Agent; and (ii) at the request of the Administrative Agent, deliver to the Administrative Agent (eacha signed copy of an opinion, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed addressed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Lenders, in any property of such counsel to the Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required Parties reasonably acceptable to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent as to such matters set forth in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(bthis Section 9.12(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Documents or other security documents as the Administrative Agent shall may reasonably request.
(c) Within 60 days following Each of the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion).
(d) Holdings will, and will cause each Subsidiary that, after the Effective Date, provides security, directly or indirectly, under the First Lien Credit Documents (or own any Permitted Refinancing Indebtedness incurred in respect thereof) to pledge its assets that secure the obligations under the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective security interests pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness.
(e) Holdings will, and will cause each of the other Credit Parties toCollateral will, at the expense of Holdings and the BorrowerCompany, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchersAgent, invoicespromptly, schedules, confirmatory assignments, financing statements, transfer endorsements, powers upon the reasonable request of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower willCollateral Agent, at their own Company’s expense, provide any document or instrument supplemental to or confirmatory of the Security Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent appraisals which satisfy or the Collateral Agent reasonably necessary for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative AgentSecurity Document.
(gd) Holdings and Each of the Borrower agree Credit Parties agrees that each action required by clauses (da) through (fc) of this Section 10.10 9.12 shall be completed as soon as possiblereasonably practicable, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, but in no event later than 45 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, Collateral Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lendersshall otherwise agree), as the case may be); provided that in no event will Holdings or any of its Subsidiaries the Credit Parties be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.109.12.
(h) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect to the security interests created under the First Lien Credit Documents, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties (other than the Original Mortgage Properties and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereof.
Appears in 1 contract
Additional Collateral; Further Assurances; Etc. (a) Subject to applicable law, each Credit Party shall, unless the Required Lenders otherwise consent, cause each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party to the Guaranty and Collateral Agreement and, if same has not been terminated in accordance with its terms, the Intercreditor Agreement) by executing a Joinder Agreement in substantially the form set forth as Exhibit M hereto, in each case with such changes as may be reasonably requested by or satisfactory to the Administrative Agent (each, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Credit Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any property of such Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Credit Documents or other security documents as the Administrative Agent shall reasonably request.
(c) Within 60 days following the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that . If (and only if) the actions required Qualified Equity Trigger Date does not occur on or prior to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date September 30, 2010, then by November 30, 2010 (or such later date as may reasonably be agreed to by the Administrative Agent Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), the Borrower and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Original Mortgage Tax State Property and, in its sole discretion)connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the respective Original Mortgage Tax State Property were an Original Mortgaged Property.
(d) Holdings will, and will cause each Subsidiary thatother Credit Party to, after grant to the Effective DateCollateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such Owned Real Property (excluding the Original Mortgage Tax State Properties, provides security, directly or indirectly, under which are subject to preceding clause (c)) of Holdings and such other Credit Party as are not covered by the First Lien Credit original Security Documents (or any Permitted Refinancing Indebtedness incurred otherwise covered by the actions taken as required in respect thereofpreceding clauses (a) through (c)) and as may be reasonably requested from time to pledge its assets that secure time by the obligations under Administrative Agent or the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents Required Lenders (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective ). All such security interests and Mortgages shall be granted pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness.
(e) Holdings will, documentation reasonably satisfactory in form and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver substance to the Collateral Agent from time and shall constitute valid and enforceable perfected security interests, hypothecations and Mortgages superior to time such vouchers, invoices, schedules, confirmatory assignments, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating prior to the Collateral covered by any rights of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, all third Persons and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.
(g) Holdings and the Borrower agree that each action required by clauses (d) through (f) of this Section 10.10 shall be completed as soon as possible, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from enforceable against third parties (who are not Subsidiaries of Holdings) with respect and subject to its compliance with this Section 10.10.
(h) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect to the security interests created under the First Lien Credit Documents, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, howeverno other Liens except for Permitted Liens or, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its SubsidiariesOwned Real Property, the respective Credit Party Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall not be have been duly recorded or filed in such manner and in such places as are required by law to pledge more than 66% establish and perfect the Liens in favor of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be Collateral Agent required to be pledged granted pursuant to the Additional Security Documents and all taxes, fees and other charges payable in support of such obligations)connection therewith shall have been paid in full. Notwithstanding anything to the contrary contained in foregoing, this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties (other than the Original Mortgage Properties and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereof.Section
Appears in 1 contract
Additional Collateral; Further Assurances; Etc. (a) Subject to applicable law, each Credit Party shall, unless the Required Lenders otherwise consent, cause each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party to the Guaranty and Collateral Agreement and, if same has not been terminated in accordance with its terms, the Intercreditor Agreement) by executing a Joinder Agreement in substantially the form set forth as Exhibit M hereto, in each case with such changes as may be reasonably requested by or satisfactory to the Administrative Agent (each, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Credit Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any property of such Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Credit Documents or other security documents as the Administrative Agent shall reasonably request.
(c) Within 60 days following the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that . If (and only if) the actions required Qualified Equity Trigger Date does not occur on or prior to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date September 30, 2010, then by November 30, 2010 (or such later date as may reasonably be agreed to by the Administrative Agent Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), the Borrower and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Original Mortgage Tax State Property and, in its sole discretion)connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the respective Original Mortgage Tax State Property were an Original Mortgaged Property.
(d) Holdings will, and will cause each Subsidiary thatother Credit Party to, after grant to the Effective DateCollateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such Owned Real Property (excluding the Original Mortgage Tax State Properties, provides security, directly or indirectly, under which are subject to preceding clause (c)) of Holdings and such other Credit Party as are not covered by the First Lien Credit original Security Documents (or any Permitted Refinancing Indebtedness incurred otherwise covered by the actions taken as required in respect thereofpreceding clauses (a) through (c)) and as may be reasonably requested from time to pledge its assets that secure time by the obligations under Administrative Agent or the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents Required Lenders (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective ). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute valid and enforceable perfected security interests, hypothecations and Mortgages superior to and prior to the rights of all third Persons and enforceable against third parties and subject to no other Liens except for Permitted Liens or, in the case of Owned Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish and perfect the Liens in favor of the Collateral Agent required to be granted pursuant to the First Lien Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, this Section 10.10(d) shall not apply to (and Holdings and its Subsidiaries shall not be required to grant a Mortgage in) any Owned Real Property the fair market value (as reasonably estimated by the Borrower) or book value (whichever is higher) of which is less than $30,000,000, except that if the aggregate fair market value or book value (whichever is higher) of all Owned Real Property of the Credit Documents Parties which are not subject to Mortgages (exclusive of the Original Mortgage Tax State Properties) is greater than $500,000,000, then the Credit Parties shall be required to grant Mortgages in such Owned Real Properties as may be requested by the Administrative Agent or relevant Permitted Refinancing Indebtednessthe Required Lenders so that the aggregate value of the non-mortgaged Owned Real Properties described above does not exceed $500,000,000. Furthermore, with respect to any Owned Real Property in a Mortgage Tax State which is acquired by Holdings or a Subsidiary thereof which is a Credit Party after the Initial Borrowing Date and with respect to which a Mortgage would otherwise be required to be granted above, the Administrative Agent may, in its sole discretion, agree that a Mortgage on such Owned Real Property shall not be required if the Administrative Agent determines that the cost of obtaining the respective Mortgage exceeds the benefits of the security interests in the respective Owned Real Property (given the other Collateral at such time for the Obligations).
(e) Holdings will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.
(g) Holdings and the Borrower agree that each action required by clauses (d) through (f) of this Section 10.10 shall be completed as soon as possible, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.10.
(h) If Within 60 days after any Foreign Pledge Agreements request by the Administrative Agent or the Required Lenders (or such later date as defined in may be agreed by the First Lien Credit Agreement) are executed Administrative Agent), with respect to the security interests created any Equity Interests in one or more Persons organized under the First Lien Credit Documentslaws of a non-U.S. jurisdiction which have been pledged pursuant to the Guaranty and Collateral Agreement, then substantially contemporaneously therewith if the Administrative Agent or Required Lenders reasonably determine (based on advice of local counsel and to the extent legally permitted by the relevant applicable foreign law) that it would be in the interests of the Secured Creditors that the respective Credit Party or Credit Parties shall which own such Equity Interests authorize, execute and deliver substantially similar one or more additional pledge agreements governed by the laws of the jurisdiction or jurisdictions in which the Person or Persons whose Equity Interests are being pledged is (or are) organized, then the respective Credit Party or Credit Parties shall, subject to secure the Obligations hereunder local law limitations, (each i) so authorize, execute and deliver one or more such additional pledge agreements (each, as amended, modified, restated and/or supplemented from time to time, a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”)) and (ii) take such reasonable actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) by each such Foreign Pledge Agreement. Each Foreign Pledge Agreement shall (i) be prepared by local counsel reasonably satisfactory to the Administrative Agent and (ii) be in form and substance reasonably satisfactory to the Administrative Agent, it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Credit Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), ) and (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties (other than the Original Mortgage Properties and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereof.
Appears in 1 contract
Additional Collateral; Further Assurances; Etc. (a) Subject With respect to applicable law, each Credit Party shall, unless any fee interest in any Material Real Estate acquired after the Required Lenders otherwise consent, cause each of its Wholly-Owned Domestic Subsidiaries Closing Date by the Borrower or any Subsidiary Guarantor (excluding other than any Excluded Subsidiary, such real property owned by any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or acquired (or which first becomes such a Wholly-Owned Domestic Foreign Subsidiary or ceases subject to be an Excluded Subsidiarya Lien expressly permitted by Section 7.3(g)), an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after promptly notify the date of this Agreement to become a Credit Party (and a party to the Guaranty and Collateral Agreement Administrative Agent thereof, and, if same has not been terminated reasonably requested by the Administrative Agent or the Required Lenders, within 120 days of such request (or such longer period as the Administrative Agent (acting at the direction of the Required Lenders) shall permit in accordance with its termssole discretion): (i) execute and deliver a Mortgage in favor of the Administrative Agent, for the Intercreditor Agreement) by executing a Joinder Agreement in substantially benefit of the form set forth as Exhibit M heretoSecured Parties, covering such real property, in each case with such changes as may be prior and superior in right to any other Person (except Liens permitted by Section 7.3), (ii) if reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders), 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 (at the direction of the Required Lenders)) 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 (acting at the direction of the Required Lenders) in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent (each, a “Joinder Agreement”acting at the direction of the Required Lenders) within thirty and (30iii) days (or such longer time period if agreed to reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders), 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 (acting at the direction of the Required Lenders). Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by the Borrower or any other Loan Party after the Closing Date until the date that is 45 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such real property: (i) completed “Life of Loan” Federal Emergency Management Agency standard flood hazard determination(s) with respect to such real property and related documents with respect to such real property reasonably requested by any Lender; (ii) if such real property is located in a “special flood hazard area”, a notification to each Borrower (and applicable Loan Party) of that fact and notification to each Borrower (and applicable Loan Party) stating whether flood insurance coverage is available, and evidence that each Borrower (or other Loan Party) to which a notice was sent, has signed and returned the notice; and (iii) if such notice is required to be provided to the Borrower (or applicable Loan Party) and flood insurance is available in the community in which such real property is located, a copy of the policy, or declaration evidencing such required flood insurance in an amount and with terms required by the Flood Insurance Laws.
(b) With respect to any new Material Subsidiary created or acquired after the Closing Date, by the Borrower or any of its Subsidiaries (or, from and after the Closing Date, if a Subsidiary that has previously been created or acquired becomes a Material Subsidiary), promptly (and in any event within 45 days or such longer period as the Administrative Agent (acting at the direction of the Required Lenders) shall permit in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of discretion (such Person becomes a Wholly-Owned Domestic Subsidiary or ceases longer period not to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person exceed 30 days)): (i) shall become a Guarantor hereunder execute and thereupon shall have all deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent (acting at the direction of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Documents and (iiRequired Lenders) will deems necessary to grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and Secured Parties, a perfected first priority security interest in the Lenders, in any property Capital Stock of such Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it new Subsidiary that is understood and agreed that all actions specified above shall be required to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(c) Within 60 days following the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agentits Subsidiaries, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion).
(d) Holdings will, and will cause each Subsidiary that, after the Effective Date, provides security, directly or indirectly, under the First Lien Credit Documents (or any Permitted Refinancing Indebtedness incurred in respect thereof) to pledge its assets that secure the obligations under the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective security interests pursuant to the First Lien Credit Documents or relevant Permitted Refinancing Indebtedness.
(e) Holdings will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.
(g) Holdings and the Borrower agree that each action required by clauses (d) through (f) of this Section 10.10 shall be completed as soon as possible, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.10.
(h) If any Foreign Pledge Agreements (as defined in the First Lien Credit Agreement) are executed with respect to the security interests created under the First Lien Credit Documents, then substantially contemporaneously therewith the respective Credit Party or Credit Parties shall execute and deliver substantially similar pledge agreements to secure the Obligations hereunder (each a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”), it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interestscertificates, if any, of each representing such Foreign Subsidiary shall be required to be pledged Capital Stock, together with undated stock powers, in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10blank, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation executed and delivered by a duly authorized officer of the Borrower and no security or similar interest shall be granted in the assets of any Foreign such Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretioniii) consider cause such new Subsidiary (A) to become a party to the costs Guarantee and Collateral Agreement and (B) to take such actions necessary to grant to the Administrative Agent for the benefit of the actions required Secured Parties a perfected security interest in connection the Collateral described in the Guarantee and Collateral Agreement with the execution respect to such new Subsidiary in each case prior and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
superior in right to any other Person (i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b)except, then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a)Collateral other than Pledged Stock, (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Liens permitted by Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.187.3, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. Notwithstanding anything to the contrary contained above, the Borrower and the other Credit Parties shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, in the case of any Real Properties Pledged Stock, (other than i) Liens permitted by Section 7.3(s) and (ii) Liens permitted by Section 7.3(a) to the Original Mortgage Properties extent such Liens are prior and superior to the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax StatesLiens granted under the Security Documents by operation of law), including, without limitation, the Credit Parties shall not filing of Uniform Commercial Code financing statements in such jurisdictions as may be required to grant Mortgages therein unless by the Guarantee and until such time Collateral Agreement or by law or as may be requested by the Administrative Agent (acting at the direction of the Required Lenders), and (iv) if any) as reasonably requested by the First-Lien Obligations Administrative Agent (as defined in acting at the Intercreditor Agreement) are fully secured direction of the Required Lenders), deliver to the maximum principal thereof.Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from
Appears in 1 contract
Samples: Revolving Credit Agreement (National CineMedia, Inc.)
Additional Collateral; Further Assurances; Etc. (a) Subject to applicable law, each Credit Party shall, unless the Required Lenders otherwise consent, cause each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit Party (and a party to the Guaranty and Collateral Agreement and, if same has not been terminated in accordance with its terms, the Intercreditor Agreement) by executing a Joinder Agreement in substantially the form set forth as Exhibit M hereto, in each case with such changes as may be reasonably requested by or satisfactory to the Administrative Agent (each, a “Joinder Agreement”) within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary. Upon execution and delivery thereof, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Bridge Loan Credit Documents and (ii) at all times other than on or after the Collateral Release Date, will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any property of such Credit Party which constitutes Collateral as set forth in, and in accordance with, the Security Documents. Without limiting the foregoing, it is understood and agreed that all actions specified above shall be required to be taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing Date, and in any event within thirty (30) days thereafter or such later date if agreed to by the Administrative Agent in its sole discretion; provided that actions with respect to Target Mortgaged Properties shall be taken as required by the following clause (c).
(b) Subject to the time period in which to deliver a Joinder Agreement pursuant to Section 10.10(a) above, each Credit Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (excluding any Excluded Subsidiary) and (ii) 66% of the issued and outstanding voting Equity Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and 100% of the issued and outstanding non-voting Equity Interests in each such Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Bridge Loan Credit Documents or other security documents as the Administrative Agent shall reasonably request.
(c) Within 60 days following the Merger Closing Date (or such later date as may reasonably be agreed to by the Administrative Agent, provided one extension of 30 days shall automatically be granted if the applicable Credit Parties are using good faith efforts to satisfy this covenant), Target and its Subsidiaries which are Credit Parties (as required by preceding clause (a)) shall be required to grant Mortgages with respect to each Target Mortgaged Property and, in connection therewith, shall take all the actions specified in Section 6.18 as would have been required if the requested Target Mortgaged Property were an Original Mortgaged Property; provided that the actions required to be taken pursuant to clauses (ii) and (iii) of Section 6.18 shall not be required to be completed until 90 days following the Merger Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion)[Reserved.]
(d) Holdings will, and will cause each Subsidiary thatother Credit Party to, after grant to the Effective DateCollateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such Owned Real Property (excluding the Original Mortgage Tax State Properties, provides security, directly or indirectly, under which are subject to preceding clause (c)) of Holdings and such other Credit Party as are not covered by the First Lien Credit original Security Documents (or any Permitted Refinancing Indebtedness incurred otherwise covered by the actions taken as required in respect thereofpreceding clauses (a) through (c)) and as may be reasonably requested from time to pledge its assets that secure time by the obligations under Administrative Agent or the First Lien Loans (or any Permitted Refinancing Indebtedness incurred in respect thereof) to secure the Obligations hereunder on at least a second-ranking basis (in relation to the First Lien Indebtedness) in a manner consistent with the Intercreditor Agreement and with the priority contemplated under this Agreement and the other Bridge Loan Documents, in each case pursuant to security documents Required Lenders (collectively, the “Additional Security Documents”) which are substantially consistent with those used to create the respective ). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute valid and enforceable perfected security interests, hypothecations and Mortgages superior to and prior to the rights of all third Persons and enforceable against third parties and subject to no other Liens except for Permitted Liens or, in the case of Owned Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish and perfect the Liens in favor of the Collateral Agent required to be granted pursuant to the First Lien Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, this Section 10.10(d) shall not apply to (and Holdings and its Subsidiaries shall not be required to grant a Mortgage in) any Owned Real Property the fair market value (as reasonably estimated by the Borrower) or book value (whichever is higher) of which is less than $30,000,000, except that if the aggregate fair market value or book value (whichever is higher) of all Owned Real Property of the Credit Documents Parties which are not subject to Mortgages (exclusive of the Original Mortgage Tax State Properties) is greater than $500,000,000, then the Credit Parties shall be required to grant Mortgages in such Owned Real Properties as may be requested by the Administrative Agent or relevant Permitted Refinancing Indebtednessthe Required Lenders so that the aggregate value of the non-mortgaged Owned Real Properties described above does not exceed $500,000,000. Furthermore, with respect to any Owned Real Property in a Mortgage Tax State which is acquired by Holdings or a Subsidiary thereof which is a Credit Party after the Initial Borrowing Date and with respect to which a Mortgage would otherwise be required to be granted above, the Administrative Agent may, in its sole discretion, agree that a Mortgage on such Owned Real Property shall not be required if the Administrative Agent determines that the cost of obtaining the respective Mortgage exceeds the benefits of the security interests in the respective Owned Real Property (given the other Collateral at such time for the Obligations).
(e) Holdings will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require; provided that the foregoing shall not require actions which are expressly not required to be taken in accordance with the terms of any relevant Security Document or this Agreement. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 10.10 has been complied with or this Agreement.
(f) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.
(g) Holdings and the Borrower agree that each action required by clauses (d) through (f) of this Section 10.10 shall be completed as soon as possible, but, except as otherwise expressly provided in the relevant Security Document or this Agreement, in no event later than 45 days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as may be satisfactory to the Administrative Agent or the Required Lenders, as the case may be); provided that in no event will Holdings or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties (who are not Subsidiaries of Holdings) with respect to its compliance with this Section 10.10.
(h) If Within 60 days after any Foreign Pledge Agreements request by the Administrative Agent or the Required Lenders (or such later date as defined in may be agreed by the First Lien Credit Agreement) are executed Administrative Agent), with respect to the security interests created any Equity Interests in one or more Persons organized under the First Lien Credit Documentslaws of a non-U.S. jurisdiction which have been pledged pursuant to the Guaranty and Collateral Agreement, then substantially contemporaneously therewith if the Administrative Agent or Required Lenders reasonably determine (based on advice of local counsel and to the extent legally permitted by the relevant applicable foreign law) that it would be in the interests of the Secured Creditors that the respective Credit Party or Credit Parties shall which own such Equity Interests authorize, execute and deliver substantially similar one or more additional pledge agreements governed by the laws of the jurisdiction or jurisdictions in which the Person or Persons whose Equity Interests are being pledged is (or are) organized, then the respective Credit Party or Credit Parties shall, subject to secure the Obligations hereunder local law limitations, (each i) so authorize, execute and deliver one or more such additional pledge agreements (each, as amended, modified, restated and/or supplemented from time to time, a “Foreign Pledge Agreement” and, collectively, the “Foreign Pledge Agreements”)) and (ii) take such reasonable actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) by each such Foreign Pledge Agreement. Each Foreign Pledge Agreement shall (i) be prepared by local counsel reasonably satisfactory to the Administrative Agent and (ii) be in form and substance reasonably satisfactory to the Administrative Agent, it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Holdings or any of its Subsidiaries, the respective Credit Party shall not be required to pledge more than 66% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (x) as a Borrower under the Bridge Loan this Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such obligations). Notwithstanding anything to the contrary contained in this Section 10.10, except if required pursuant to preceding clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower and no security or similar interest shall be granted in the assets of any Foreign Subsidiary, which security or similar interest guarantees any Obligation of the Borrower. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(i) To the extent any action which would otherwise have been required to be taken pursuant to Sections 6.10 and 6.18 hereof have not been taken on or prior to the Initial Borrowing Date as permitted by Section 6.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Sections 6.10(a), (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.18 and (z) 90 days after the Initial Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and (iii) of Section 6.18, in each case as such dates may be extended (with respect to a given action or actions) at the sole discretion of the Administrative Agent. In determining whether to require one or more Foreign Pledge Agreements as permitted above, the Administrative Agent or Required Lenders, as the case may be, shall (in their sole discretion) consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.
(j) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement or any other Credit Document, upon the occurrence of the Collateral Release Date the Liens on all Collateral of the Credit Parties granted to or held by the Collateral Agent (on behalf of the Secured Creditors) pursuant to the Security Documents shall be released (collectively, the “Release”), whereupon (A) Sections 10.10(b), (d), (e), (f), (g) and (h) shall have no further force or effect and (B) the Administrative Agent shall, at the sole expense of the Credit Parties, take such action as the Credit Parties may reasonably request to effectuate, evidence or reflect of public record, the release of such Liens (including, but not limited to the filing of termination and full or partial release statements or confirmations thereof, as applicable), in each case, without recourse and without any representation or warranty of any kind (either express or implied), unless any of the foregoing actions would, or in the judgment of the Collateral Agent would, expose the Administrative Agent, the Collateral Agent or any officer of the Administrative Agent or Collateral Agent to personal liability or (y) would be contrary to applicable law. Notwithstanding anything to the contrary contained abovein this clause (j), all guaranties provided pursuant to the Guaranties (including, without limitation, the Borrower guaranties provided by the Holdings Guaranty and the other Credit Parties Subsidiaries Guaranty) shall not be required to grant Mortgages with respect to any Original Mortgage Tax State Property and, remain in the case of any Real Properties (other than the Original Mortgage Properties full force and the Target Mortgage Properties) at any time acquired or owned in one or more Mortgage Tax States, the Credit Parties shall not be required to grant Mortgages therein unless and until such time (if any) as the First-Lien Obligations (as defined in the Intercreditor Agreement) are fully secured to the maximum principal thereofeffect.
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