Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents. (b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary. (c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. (d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties. (e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true. (f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 7 contracts
Samples: Incremental Revolving Credit Assumption Agreement (TransDigm Group INC), Incremental Term Loan Assumption Agreement (TransDigm Group INC), Credit Agreement (TransDigm Group INC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the date that is the later of (i) 30 days following the date of such formation or acquisition and (ii) any the earlier of the date of the required delivery of the next Compliance Certificate following such Domestic Subsidiary that was an Immaterial Subsidiary but, as of creation or acquisition and the date which is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Joinder Agreement in substantially the form set forth attached as Exhibit D J hereto (the “Joinder Agreement”)) and a Security Agreement Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith deliver a completed Perfection Certificate and simultaneously therewith or as soon as practicable thereafter (and in any event within 45 days thereafter (as may be extended at the discretion of the Administration Agent)) take such actions as may be required in accordance with the terms hereof or of the applicable Collateral Documents to grant Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (d) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes CollateralCollateral (including any Material Real Estate Assets), on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Subordination Agreement, and with respect to Material Real Estate Assets, take such actions described in paragraph (d) of this Section.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party it to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents (other than Capital Stock in Osmotica BVI, so long as Osmotica BVI is not a Loan Documents Party); provided that, in the case of voting Capital Stock of After-Acquired CFCs and Disregarded Domestic Subsidiaries, such pledge shall be limited to 65.0% of the voting Capital Stock of any first-tier After-Acquired CFC or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Disregarded Domestic Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary of its Subsidiaries that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets any asset constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become becomes subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 90 days of such request (or such longer period as may be acceptable to the Borrower Administrative Agent) such Loan Party will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection and delivery of flood hazard determination forms, title insurance policies (including any endorsements thereto), surveys and local counsel opinions, all at the expense of the Loan Parties.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), Borrowers shall cause one or more such Domestic Restricted Subsidiaries Subsidiary to become additional Loan Parties take all actions required by this Section 5.12 (notwithstanding that within the time periods specified herein) as if such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueSubsidiary were then formed or acquired.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 6 contracts
Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower each Loan Party and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (iiexcept for Permitted J/Vs) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party by executing the Joinder Agreement set forth as Exhibit F hereto (the “Joinder Agreement”) within 20 five (5) Business Days of the creation or acquisition thereof (or such later date as longer period of time agreed to in writing by the Administrative Agent in its sole and absolute discretion) by executing a Joinder Agreement in substantially ). In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of owned real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in other than the case Equity Interest of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (Permitted J/Vs not owned by any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), other Loan Party or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require . Each Loan Party will cause 65% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its Foreign Subsidiaries (other than the Equity Interest of any Permitted J/Vs not owned by any other Loan Party or Subsidiary) to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities for the benefit of the Borrower Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with documents as the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, fee property mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. For the avoidance of doubt, no Loan Party shall have any obligation to deliver any mortgages in respect of any leasehold interests in real property.
(d) Subject to the limitations set forth or referred to in this Section 5.11second sentence of clause (b) above and the final sentence of clause (c) above, if any material assets (including any owned fee real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 4 contracts
Samples: Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (e) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal Federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to Permitted Liens) perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material owned assets having a fair market value in excess of $2,000,000 (including any owned real property properly or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Section 5.11, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are real property required to be delivered pursuant mortgaged under this Section 5.11 shall be limited to this Agreement real property located in the U.S. that is owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $2,000,0000 or more (or provided that the cost of perfecting such later date as agreed Lien is not unreasonable in relation to by the benefits to the Lenders of the security afforded thereby in the Administrative Agent in its sole discretionAgent’s reasonable judgment after consultation with the Borrower), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each Subsidiary that is of the Parent (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Parent (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty.
(b) Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Loan Party which constitutes Collateral, including any parcel of real Property located in the U.S. owned by any Loan Party, and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as applicable). Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Parent’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Star Gas Partners Lp), Credit Agreement (Star Gas Partners Lp), Credit Agreement (Star Gas Partners Lp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (Subsidiaries, other than any Immaterial Domestic Subsidiary that is an Excluded Subsidiary and (except as otherwise provided ii) each First-Tier Foreign DRE, in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) each case formed or acquired after the Second Restatement Closing Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to become a Loan Party Subsidiary Guarantor promptly (and in any event within 20 Business Days (forty-five days after the creation or acquisition thereof or after such later date as agreed Domestic Subsidiary ceases to by the Administrative Agent in its sole discretionbe an Excluded Subsidiary) by executing a Guarantor Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)H hereto. Upon execution and delivery thereof, each such Person shall (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents, (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent (for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties) to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.8 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Security Documents and in such priority as may be required pursuant to the terms of the Security Documents and (iii) subject to the terms of the Security Documents, deliver to the Administrative Agent the certificates, if any, representing all of the Capital Stock of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party.
(b) Holdings, the The Borrower and each Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock directly owned thereby of each of its Domestic Subsidiaries (orother than First-Tier CFC Holdcos), (ii) 100% of the issued and outstanding Capital Stock directly owned thereby of each of the First-Tier Foreign DREs and (iii) 100% of the Capital Stock directly owned thereby (but in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic SubsidiaryCapital Stock entitled to vote, a “DRE”) that holds not more than 65% of the Capital Stock constituting the total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)vote) in each First-Tier Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party and First-Tier CFC Holdco, to be subject at all times pledged to a first priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents Security Agreement and, subject to the terms of the Security Documents, will deliver to the Administrative Agent the certificates, if any, representing such Capital Stock of such Subsidiary, together with undated stock powers or other security documents as appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the Agent shall reasonably request; provided, however, this paragraph (bholder(s) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCapital Stock.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Sections 4.1 or 4.2, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsSecurity Documents (subject to the terms of Term Loan/ABL Intercreditor Agreement), all at the expense of the Loan Parties.
(d) Subject With respect to the limitations set forth or referred to any interest in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those located in the United States having a fair market value value, together with improvements thereof of at least $5,000,000) are acquired 2,000,000 (as reasonably determined by the Borrower or Company in good faith) acquired after the Closing Date by any Subsidiary Loan Party that is a Group Member (or any Group Member required to become a Loan Party after pursuant to the Second Restatement Date terms of the Loan Documents) (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become any such real property subject to a Lien expressly permitted by clauses (i), (q) and (s) of Section 6.2 to the extent and for so long as the obligations relating to such Liens do not permit a Lien on such property in favor of the Agent upon acquisition thereofSecured Parties), the Borrower will notify the Agent promptly execute and the Lenders thereofdeliver a first priority Mortgage, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense favor of the Loan Parties.
(e) IfAdministrative Agent, at any time and from time to time after for the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as benefit of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries Secured Parties, covering such interest in real property, in each case subject only to Permitted Liens or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required other Liens acceptable to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueAgent.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (TMS International Corp.), Credit Agreement (TMS International Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a subsidiary of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed Borrower by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries (orother than its Non-U.S. Subsidiaries) to be subject at all times to a first priority, perfected Lien (subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is other Loan Party and each subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesSection 4.01 (as applicable).
(d) Subject If any Loan Party proposes to acquire a fee ownership interest in real property after the date of this Agreement (to the limitations set forth or referred to in this Section 5.11extent such acquisition is permitted hereunder), if any material assets an Event of Default is continuing or if Availability is ever less than $6,000,000, each Borrower will, and will cause each other Loan Party to, provide to the Collateral Agent (including any owned upon the Administrative Agent’s request, which request may be made at the Administrative Agent’s sole option) a mortgage or deed of trust granting the Collateral Agent a first priority Lien on its real property, together with environmental audits, mortgage title insurance commitment, real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereofsurvey, local counsel opinion(s), the Borrower will notify the Agent and the Lenders thereof, and, if requested required by the Agent or the Required LendersCollateral Agent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Collateral Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 3 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 5.10, the limitations with respect to real property set forth in paragraph (e) of this Section 5.10 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal Federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock Equity Interests of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to Permitted Liens and the Intercreditor Agreement), perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01), as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.10, if any material owned assets having a fair market value in excess of $2,000,000 (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a other Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Section 5.10, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are real property required to be delivered pursuant mortgaged under this Section 5.10 shall be limited to this Agreement real property that is owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $2,000,0000 or more (or provided that the cost of perfecting such later date as agreed Lien is not unreasonable in relation to by the benefits to the Lenders of the security afforded thereby in the Administrative Agent in its sole discretionAgent’s reasonable judgment after consultation with the Borrower), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (Tube City IMS CORP)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a subsidiary of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed Borrower by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic domestic Subsidiaries to be subject at all times to a first priority, perfected Lien (or, subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is other Loan Party and each subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesSection 4.01 (as applicable).
(d) Subject to To the limitations set forth or referred to in this Section 5.11extent permitted hereunder, if any material assets (including any owned Loan Party proposes to acquire a fee ownership interest in real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value after the date of at least $5,000,000) are acquired by the this Agreement, each Borrower or any Subsidiary that is a will, and will cause each other Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to, first provide to the Collateral Agent a mortgage or deed of trust granting the Collateral Agent a first priority Lien in favor of the Agent upon acquisition thereofon such real property, together with environmental audits, mortgage title insurance commitment, real property survey, local counsel opinion(s), the Borrower will notify the Agent and the Lenders thereof, and, if requested required by the Agent or the Required LendersCollateral Agent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Collateral Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Joe's Jeans Inc.), Revolving Credit Agreement (Joe's Jeans Inc.), Term Loan Credit Agreement (Joe's Jeans Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Receivables Subsidiary or Business Securitization EntitiesSubsidiary) formed or acquired which becomes a Domestic Subsidiary after the Second Restatement Closing Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Amendment Agreement (Aramark Corp), Credit Agreement (Aramark Corp), Credit Agreement (Aramark Corp/De)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a US Loan Party shall (within five days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Foreign Subsidiary) formed or acquired after the Second Restatement Date and or which cease to be Immaterial Subsidiaries (iiA) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a US Loan Party within 20 Business Days (or such later date as agreed by executing and delivering to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary grant to such Collateral Agent (for the benefit of the Agents, the Lenders and the Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent and Agents, the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofIssuing Banks), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or either Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent and each Collateral Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent or any Subsidiary that is a Loan Party after either Collateral Agent, in the Second Restatement Date (other than assets constituting Collateral under exercise of its Permitted Discretion, in order to perfect or protect the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the applicable Collateral Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) date of this Agreement or any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased limited liability companies formed pursuant to qualify as an Immaterial Subsidiary, any division to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Lender shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor or Borrower hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the AgentLender, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign foreign Subsidiary directly owned by the any Borrower or any domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent Lender, for the benefit of the Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Lender shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent Lender such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Agent Lender may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Agent and the Lenders thereof, Lender and, if requested by the Agent or the Required LendersLender, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Agent Lender to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Samples: Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic domestic and Canadian Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E-1 hereto (the “Loan Party Joinder Agreement”). Notwithstanding the foregoing, if the newly formed or acquired Subsidiary has assets that are to be included in the Borrowing Base, such Subsidiary shall become a Borrower hereunder by executing the Joinder Agreement set forth as Exhibit E-2 hereto (the “Borrower Joinder Agreement” and collectively with the Loan Party Joinder Agreement, the “Joinder Agreements”, and each individually a “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become either a Loan Party Guarantor or a Borrower, as appropriate in the reasonable judgment of the Administrative Agent, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any material property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party Person which constitutes Collateral, on including any material parcel of real property located in the U.S. or Canada owned by such terms as may be required pursuant to the terms Person, except for Equity Interests in a foreign subsidiary representing more than 65% of the Collateral Documentstotal combined voting power in such foreign subsidiary.
(b) Holdings, the Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic and Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) Canada and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign foreign Subsidiary (excluding Subsidiaries in Canada) directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting Subject to the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Security Agreement upon acquisition thereof), the Borrower Borrowers will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower Borrowers will cause such assets assets, except for Equity Interests in a foreign subsidiary representing more than 65% of the total combined voting power in such foreign subsidiary, to be subjected to a Lien securing the Secured Obligations and will take, and cause the Subsidiary Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Core-Mark Holding Company, Inc.), Credit Agreement (Core-Mark Holding Company, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party by executing the Joinder Agreement and taking all actions required by the Collateral Documents to create the liens created thereunder within 20 Business Days thirty (30) days (or such later date as may be agreed to upon by the Administrative Agent in its sole discretionAgent) by executing a of such formation, or acquisition, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in substantially form and substance reasonably satisfactory to the form set forth as Exhibit D hereto (the “Joinder Agreement”)Administrative Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsWithout limiting the generality of the foregoing, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority second priority, perfected Lien (except in the case of the Pledged Specified Assets, which will be subject at all times to a first priority, perfected Lien) in favor of the Administrative Agent pursuant for the benefit of the Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or such other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Foreign Subsidiary to formed after the extent a pledge Effective Date shall be required hereunder (i) until not later than 30 days after the formation of such Equity Interests Foreign Subsidiary, or such shorter time as provided in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC First Lien Credit Agreement (or any other government agencysuch later date as may be agreed upon by the Administrative Agent) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) to the Equity Interests extent the Administrative Agent or its counsel determines that, in light of any Unrestricted Subsidiarythe cost and expense associated therewith, such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instrumentsinstruments (including, without limitation, deposit account control agreements and securities account control agreements), and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Subsidiary Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Notwithstanding anything in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (including without limitation, this Section 5.11 or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial SubsidiariesSection 5.12) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the (i) no Foreign Subsidiary shall be a primary obligor or guarantor (pursuant to Article VII or otherwise) or pledgor of any assets or otherwise be responsible for, in each case, any Obligations incurred by or on behalf of any Loan Parties shall not be required to grant a security interest Party in any personal property of a type manner that would not constitute Pledged Collateral or Article 9 Collateral cause a Deemed Dividend Issue and (each as defined in the Guarantee ii) no Foreign Subsidiary which is and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 remains an Affected Foreign Subsidiary shall be liable hereunder for any of the Guarantee and Collateral AgreementLoans made to, or any other Obligations incurred on behalf of any Loan Party.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsIn connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report delivered in connection therewith and each Subsidiary the list of current Mortgaged Properties (as described in Section 5.15(c)(vi)) to ascertain whether the Mortgaged Properties represent at least 85% of the total PV-9 of the Borrowing Base Properties evaluated in such Reserve Report. In the event that is a Loan Party the Mortgaged Properties do not represent at least 85% of such total PV-9, then the Borrower shall, and shall cause the other Loan Parties to, grant, on or prior to the earlier of (i) each sixty (60) days after delivery of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ethe certificate required under Section 5.15(c) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of thirty (30) days after the end of the most recently ended fiscal quarter of Administrative Agent notifies the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days that the Mortgaged Properties do not represent at least 85% of such total PV-9 (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent as security for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property Obligations a first priority Lien (subject to the limitations with respect Permitted Mortgaged Property Liens) on additional Oil and Gas Properties not already subject to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms a Lien of the Collateral Documents such that after giving effect thereto, the Mortgaged Properties will represent at least 85% of such total PV-9. All such Liens will be created and perfected by and in accordance with the Collateral Documents, including, if applicable, any additional Mortgages.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willthe Borrower shall, and will shall cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and agreements, instruments, forms and notices and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust Mortgages and other documents serving notices of assignment and such other actions or deliveries of the type required by by
Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), 4.01) which may be required by law Requirements of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Southwestern Energy Co)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed by executing a joinder agreement in form satisfactory to by the Administrative Agent. In connection therewith, the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially shall have received all documentation and other information regarding such newly formed or acquired Domestic Subsidiaries as may be required to comply with the form set forth as Exhibit D hereto (applicable “know your customer” rules and regulations, including the “Joinder Agreement”)USA Patriot Act. Upon execution and delivery thereof, each such Person Domestic Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any parcel of real property located in the U.S. owned by such terms as may Loan Party. For the avoidance of doubt and notwithstanding anything to the contrary contained herein or in any other Loan Document, the Excluded Foreign Subsidiaries shall not be required pursuant to the terms become Loan Parties hereunder and no property or assets of the Collateral Documentsany Excluded Foreign Subsidiary shall constitute or be required to constitute any collateral for any Obligations.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of it owns in each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary with respect to the extent pledge by a pledge Loan Party of such its owned Equity Interests in favor an Excluded Foreign Subsidiary, only the pledge of Equity Interests in a Mexican Subsidiary shall be required to be governed by the laws of the Agent or to secure any debt securities jurisdiction of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Excluded Foreign Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Domestic Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Agreement, at including without limitation clauses (a) through (d) of this Section 5.14, upon the acquisition by the Borrower or any time and from time to time Loan Party after the Second Restatement DateEffective Date of any interest in any real property (wherever located) with a value in excess of $500,000, Domestic Restricted Subsidiaries that are not the Borrower or such other Loan Parties because they are Immaterial Subsidiaries comprise Party, as applicable, shall promptly (but in any event within five (5) Business Days of its acquisition thereof) so notify the aggregate more than 7.5% of Total Assets as Administrative Agent, setting forth a reasonably detailed description of the end interest acquired, the location of the most recently ended fiscal quarter real property, any structures or improvements thereon and either an appraisal or the Borrower’s or such other Loan Party’s good faith estimate of the current value of such real property. The Administrative Agent shall notify the Borrower or such other Loan Party in writing (including, for the avoidance of doubt, by electronic mail) whether it intends to require a Mortgage with respect to such property. Within sixty (60) days of the written request of the Administrative Agent, the Person that has acquired such property shall furnish a Mortgage to the Administrative Agent to create a valid and enforceable Lien (subject only to Permitted Encumbrances) in favor of the Administrative Agent for the benefit of itself, the Lenders and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of other Secured Parties (all at the Borrower cost and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter expense of the Borrower, then ). In connection with the Borrower shall, not later than 45 days after the date by which financial statements for granting of such quarter are required Mortgages to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contraryAgent, the Loan Parties shall not be required provide to grant a security interest the Administrative Agent (i) such title insurance policies, ALTA/ACSM surveys, Phase I environmental site assessment reports, opinions of counsel, and such other deliverables as reasonably requested in any personal property writing (including, for the avoidance of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined doubt, by electronic mail) by the Administrative Agent, all in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 favor of the Guarantee Administrative Agent for the benefit of the Secured Parties and Collateral Agreement(ii) flood certificates, and, if such parcel of real property is deemed by the Administrative Agent to be in a “Special Flood Hazard Area” as designated on maps prepared by the Federal Emergency Management Agency, a flood notification form signed by the Borrower and evidence that flood insurance is in place for the building and the contents, all in form substance and amount reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Sigmatron International Inc), Credit Agreement (Sigmatron International Inc)
Additional Collateral; Further Assurances. (a) Subject In the case of the formation or acquisition by the Credit Parties of any Subsidiary after the date hereof, as to applicable lawany such Subsidiary, Holdings, the Borrower and each Subsidiary that is a Loan (i) such Credit Party shall cause (i) each such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent, a joinder agreement to the Loan Documents in order to make such Subsidiary a party to this Agreement as a Guarantor and a Guaranty Agreement and shall cause it to execute and deliver such other agreements, documents or instruments and to deliver other consents, waivers, acknowledgments and other agreements from third persons which Agent may deem reasonably necessary or desirable in order to permit, protect and perfect its security interests in and Liens upon the assets of its Domestic Subsidiaries (such Subsidiary and the Equity Interests of such Credit Party in such Subsidiary, corporate resolutions and other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) organization and authorizing documents of this Section 5.11)such Person, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and favorable opinions of counsel to such person and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased Credit Party shall execute and deliver to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, a pledge and security agreement, in form and substance satisfactory to Agent, granting to Agent for the benefit of the Agent and the Lenders a first pledge of and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, Lien on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% all of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist shares of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) any such Subsidiary, such other Domestic Subsidiaries described agreements, documents and instruments as Agent may require in this clause (B)connection with the documents referred to above, 65% including, but not limited to, supplements and amendments hereto, corporate resolutions and other organization and authorizing documents and favorable opinions of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled counsel to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryperson.
(cb) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is a Loan Party (other than the MVC PE Fund) to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.026.1, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the security interests and Liens created or intended to be created by the Collateral Documentshereunder, all in form and substance reasonably satisfactory to Agent and at the expense of the Loan PartiesBorrower.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit and Security Agreement (MVC Capital, Inc.), Credit and Security Agreement (MVC Capital, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Receivables Subsidiary or Business Securitization EntitiesSubsidiary) formed or acquired which becomes a Domestic Subsidiary after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Immaterial Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Amendment Agreement (MPBP Holdings, Inc.), Amendment Agreement (Aramark Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days on or prior to the later to occur of (i) the date that is 60 days following the date of such formation or acquisition and (ii) the next date a Compliance Certificate is required to be delivered following the date of such formation or acquisition (or, in either case, such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing (i) a Joinder Agreement in substantially the form set forth attached as Exhibit D hereto (the “Joinder Agreement”), (ii) a Security Agreement Joinder Agreement and (iii) the Global Intercompany Note. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith take such actions as may be required by the terms hereof or as soon as practicable thereafter of the applicable Collateral Documents to grant and perfect Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as are required pursuant to the terms of the Collateral Documents and in such priority as may be required pursuant to the terms of the Collateral DocumentsIntercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of of, and to the Loan Documents or other security documents as extent required by, the Agent shall reasonably requestCollateral Documents; provided, howeverthat, this paragraph (b) shall not require in no event will the Borrower or any Subsidiary Guarantor be required to grant a security interest in (i) pledge or perfect more than 65.0% of the voting Capital Stock of any Equity Interests of a first-tier Foreign Subsidiary to the extent a pledge or Disregarded Domestic Subsidiary of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, subject to the Intercreditor Agreement, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 9.03(a).
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof)Closing Date, the Borrower will notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent Administrative Agent, within 90 days of such request (or such longer period as may be acceptable to the Required Lenders, Administrative Agent) the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection 5.12, all at the expense of the Borrower in accordance with Section 9.03(a). The Loan PartiesParties shall within 90 days following a request by the Administrative Agent (or such longer period as the Administrative Agent may agree in its sole discretion) cause the Mortgages on each such Material Real Estate Asset acquired by any Loan Party after the Closing Date to be executed, delivered and recorded and in connection therewith deliver corresponding UCC fixture filings, flood hazard determination forms, title insurance policies (including any customary endorsements thereto), surveys, local counsel opinions and other documentation, in each case, that the Administrative Agent shall reasonably require.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at the Borrower shall cause such Domestic Subsidiary to take all actions required by this Section 5.12 (within the time periods specified herein) as if such Domestic Subsidiary were then formed or acquired. Notwithstanding anything to the contrary in this Section 5.12 or any time other Collateral Document, (a) no Loan Party shall be required to grant any Lien on, or take any other action with respect to a Lien on, any Excluded Assets, (b) no Loan Party shall be required to perfect any Lien granted in assets as to which the cost, burden, difficulty or consequence of perfecting such Lien (including (x) any mortgage, stamp, intangibles or other tax or expenses relating to such Lien and from time (y) any effect on the ability of the relevant Loan Party to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise conduct its operations and business in the aggregate more than 7.5% of Total Assets as ordinary course) outweighs the benefit to the Lenders of the end of the most recently ended fiscal quarter of security afforded thereby as reasonably determined by the Borrower and the Restricted Subsidiaries Administrative Agent (it being understood that the maximum guaranteed or more than 7.5% secured amount may be limited to minimize stamp duty, notarization, registration or other applicable fees, taxes and duties where the benefit to the Lenders of Consolidated EBITDA increasing the guaranteed or secured amount is disproportionate to the level of the Borrower such fee, taxes and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowerduties), then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are (c) no actions shall be required to be delivered taken in order to create, grant or perfect any security interest in any assets located outside of the U.S. and no foreign law security or pledge agreements, foreign law mortgages or deeds or foreign intellectual property filings or searches shall be required, (d) Liens required to be granted or perfected pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to Section 5.12 shall be true.
(f) Notwithstanding any provision of the Loan Documents subject to the contraryIntercreditor Agreement and to exceptions and limitations consistent with those set forth in the Collateral Documents, (e) the Loan Parties shall not be required to grant seek or obtain any landlord lien waiver, estoppel, warehousemen waiver or other collateral access or similar letter or agreement and (f) no Loan Party shall be required to take any action with respect to perfection of any security interest in (A) assets requiring perfection through control agreements or other control arrangements, including deposit, securities and commodities accounts (other than control of promissory notes and pledged Capital Stock as provided in this Agreement and the Pledge and Security Agreement and filing of UCC-1 financing statements), (B) vehicles or other assets subject to state law certificate of title statutes, (C) commercial tort claims asserting damages of less than $10,000,000 or (D) letter of credit rights to the extent a security interest in any personal property therein may not be perfected as supporting obligations by the filing of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in UCC-1 financing statement on the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementprimary collateral.
Appears in 2 contracts
Samples: First Lien Credit Agreement (PSAV, Inc.), Second Lien Credit Agreement (PSAV, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingslaw and the limitations expressly set forth in this Agreement and the Collateral Documents, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Closing Date and (iiincluding, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days on or prior to the earlier to occur of (i) the date that is 30 days following the date of such formation or acquisition and (ii) the next date a Compliance Certificate is required to be delivered following the date of such formation or acquisition (including, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) (or, in either case, such later date as agreed may be acceptable to by the Administrative Agent Lender in its sole discretion) ), by executing (i) a Joinder Agreement in substantially the form set forth attached as Exhibit D B hereto (the “Joinder Agreement”), (ii) a Security Agreement Joinder Agreement or such other customary supplements or joinders to the other applicable Collateral Documents or new security or collateral documents in the United States, in each case to create Liens over its assets of scope substantially similar to the Liens granted pursuant to the Collateral Documents executed on the Closing Date or pursuant to Section 5.13, (iii) the Global Intercompany Note and (iv) such other documentation as the Lender may reasonably request and that is contemplated by the terms hereof (including, for the avoidance of doubt, documents contemplated by clause (c) of this Section 5.10) or of the applicable Collateral Documents, together with such customary closing certificates, evidences of authority and good standing and legal opinions as the Lender may reasonably request. Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or take such actions as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent may be required by the terms thereof, hereof or of the applicable Collateral Documents to grant and perfect Liens to the Lender in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as are required pursuant to the terms of the Collateral Documents and in such priority as may be required pursuant to the terms of the Collateral Documentsany Acceptable Intercreditor Agreement.
(b) Holdings, the Borrower and each Subsidiary that is a other Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more other than 65% of the any Capital Stock of a Foreign Subsidiary and/or (zconstituting an Excluded Asset) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Agent Lender pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; providedof, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary and to the extent a pledge of such Equity Interests in favor of required by, the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Documents.
(c) Without limiting the foregoing, subject to any Acceptable Intercreditor Agreement and the limitations expressly set forth in this Agreement and the Collateral Documents, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Agent Lender such documents, agreements (including, for the avoidance of doubt, deposit account and securities account control agreements to the extent required by the Collateral Documents) and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)5.14), which may be required by law or which the Agent Lender may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 8.03(a).
(d) Subject to the limitations set forth or referred to in this Section 5.115.10, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under or any Real Estate Asset which becomes a Material Real Estate Asset after the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof)Closing Date, the Borrower will promptly notify the Agent and the Lenders thereofLender, and, if requested by the Agent Lender in its sole discretion, within 75 days of such request (or such longer period as may be acceptable to the Required Lenders, Lender) the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Agent Lender to grant and perfect such Liens, including actions described in paragraph clause (c) of this SectionSection 5.10, all at the expense of the Borrower in accordance with Section 8.03(a). The Loan PartiesParties shall within 75 days following a request by the Lender (or such longer period as the Lender may agree) cause the Mortgages on each such Material Real Estate Asset acquired by any Loan Party, or which becomes a Material Real Estate Asset, after the Closing Date to be executed, delivered and recorded and in connection therewith deliver corresponding UCC fixture filings, financing statements and filings in applicable land registry offices (to the extent required), flood hazard determinations and if required, evidence of flood insurance, title insurance policies (including any customary endorsements thereto), surveys, local counsel opinions and other documentation, in each case, that the Lender shall reasonably require.
(e) If, at After any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition Subsidiary ceases to be trueconstitute an Excluded Subsidiary in accordance with the definition thereof, Holdings shall cause such Subsidiary to take all actions required by this Section 5.10 (within the time periods specified herein) as if such Subsidiary were then formed or acquired.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Secured Seller Note Agreement (American Water Works Company, Inc.), Secured Seller Note Agreement (American Water Works Company, Inc.)
Additional Collateral; Further Assurances. (a) Subject To the extent required by Section 5.14(f) below, but subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement within thirty (ii30) any days (or such Domestic Subsidiary that was an Immaterial Subsidiary but, as of longer period the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent shall approve in writing) after such formation or acquisition to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially (or such other documents performing similar functions as may be required by the form set forth Administrative Agent). In connection therewith, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act and Canadian AML Legislation. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the AgentAdministrative Agent or the Australian Security Trustee (as applicable), for the benefit of the Agent Administrative Agent, the Australian Security Trustee and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documentsincluding any Material Real Property.
(b) HoldingsTo the extent so owned, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent or the Australian Security Trustee (oras applicable) for the benefit of the Administrative Agent, the Australian Security Trustee and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided that if the Borrower, in good faith consultation with the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any Administrative Agent, reasonably determines that such Domestic Subsidiary, a “DRE”) that holds more than 65% of security interest in the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock Equity Interests of a Foreign Subsidiary and/or (zother than a Loan Party) any Domestic Subsidiary described would result in clause (B)material adverse tax consequences, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled then such pledge may be limited to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryParty.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party and Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent or the Australian Security Trustee (as applicable) such documents, agreements and instruments, and will take or cause to be taken such further actions (including the delivery of legal opinions, filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject With respect to all owned Material Real Property owned by a Loan Party that is acquired after the Effective Date or that becomes Material Real Property after the Effective Date, the Loan Parties shall within sixty (60) days thereafter (or such later date as approved by the Administrative Agent), deliver each of the following, in form and substance reasonably satisfactory to the limitations set forth Administrative Agent:
(i) a Mortgage on such property;
(ii) evidence that a counterpart of the Mortgage has been recorded in the place necessary, in the Administrative Agent’s reasonable judgment, to create a valid and enforceable first priority Lien in favor of the Administrative Agent for the benefit of itself and the Secured Parties, subject to Permitted Encumbrances;
(iii) ALTA or referred other mortgagee’s title policy;
(iv) an ALTA survey prepared and certified to the Administrative Agent by a surveyor reasonably acceptable to the Administrative Agent;
(v) an opinion of counsel in this Section 5.11the state in which such Material Real Property is located in form and substance and from counsel reasonably satisfactory to the Administrative Agent;
(vi) if any such parcel of Material Real Property is determined by the Administrative Agent to be in a flood zone, if a flood notification form signed by the Borrower and evidence that flood insurance is in place for the building and contents, all in form and substance satisfactory to the Administrative Agent;
(vii) such other information, documentation, and certifications as may be reasonably required by Administrative Agent.
(e) If any material assets (including any owned real property Material Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, to the Borrower will extent not constituting Excluded Assets (as defined in the Security Agreement), cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(ef) IfThe Borrower will ensure that the Guarantors will:
(i) at all times, own, in aggregate, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5least 85% of the Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; and
(ii) beginning with the Restricted Subsidiaries or more than 7.5first full fiscal quarter ending after the Effective Date, generate at least 85% of Consolidated the EBITDA of the Borrower and its Subsidiaries in respect of each 6-month period ending on last day of each fiscal quarter. A failure to comply with Section 5.14(f) at any time will not constitute an Event of Default if any Subsidiary that is not a Guarantor becomes a Guarantor by satisfying the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 requirements set forth Section 5.14 within thirty (30) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by longer period the Administrative Agent shall approve in its sole discretion)writing) of such formation or acquisition and, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contraryas a result, the Loan Parties shall not be required to grant a security interest in any personal property requirements of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral AgreementSection 5.14(f) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementare satisfied.
Appears in 2 contracts
Samples: Credit Agreement (F45 Training Holdings Inc.), Credit Agreement (F45 Training Holdings Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereof (iiand is not an Excluded Subsidiary) any such Domestic or that ceases to be an Excluded Subsidiary that was an Immaterial Subsidiary butafter the date hereof in accordance with the terms of this Agreement within sixty (60) days (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, and other documents) that are required under the “Joinder Agreement”)Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may under the Security Agreement. With respect to any Excluded Subsidiary formed or acquired after the date of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be required pledged to the Administrative Agent pursuant to the terms Security Agreement, the applicable Loan Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Collateral Documentsformation or acquisition of such Excluded Subsidiary notify the Administrative Agent thereof.
(b) Holdings, the Borrower The Loan Parties will execute any and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such further documents, agreements and instruments, and will take or cause to be taken all such further actions (including authorizing the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), ) which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request request, to carry out cause the terms Collateral and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended Guaranty Requirement to be created by the Collateral Documents, and remain satisfied at all at the expense of the Loan Partiestimes.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Big Lots Inc), Credit Agreement (Big Lots Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party Party, within 20 Business Days 30 days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within 30 days (iior such later date as the Administrative Agent may agree) will simultaneously therewith after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary (including any Subsidiary who becomes a Material Foreign Subsidiary after the Effective Date) directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) that is not a CFC formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (the Administrative Agent may request to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of directly held by such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) no more than 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a first-tier CFC (excluding Roblox China), in each case directly owned such Loan Party Party, to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoingforegoing but subject to the limitations and qualifications set forth in this Agreement and the other Loan Documents, each Loan Party will, and will cause each direct Subsidiary that is not a Loan Party CFC to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject in form and substance reasonably satisfactory to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Roblox Corp), Credit Agreement (Roblox Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the The U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Excluded Subsidiary) which becomes a Domestic Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Excluded Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party as promptly thereafter as reasonably practicable (and in any event within 20 Business Days 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such later date longer time period as may be reasonably agreed to by the Administrative Agent in its sole discretionAgent)) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (and in any event within 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer time period as may be reasonably agreed to by the Agent)) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties to the extent required by the terms thereofof the Collateral Documents, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral(other than Excluded Assets), on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryotherwise constitute Excluded Assets.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Incremental Amendment (Aramark), Credit Agreement (Aramark)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesEntities (any such Subsidiary, an “Excluded Subsidiary”)) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Excluded Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02consistent with past practice, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including including, other than during any Mortgage Suspension Period, any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Incremental Term Loan Assumption Agreement (TransDigm Group INC), Loan Modification Agreement (TransDigm Group INC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the (i) each Borrower and each Subsidiary that is a Loan Party shall (within 30 days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement in accordance with the terms of this Agreement (iiother than Excluded Subsidiaries) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, (A) to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”), (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) of any applicable jurisdiction) and (B) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person, (ii) if at any time an Excluded Subsidiary ceases to be an Excluded Subsidiary, each Borrower and each Subsidiary that is a Loan Party (within 30 days of such event or such longer period as the Administrative Agent may agree) shall cause such Subsidiary (x) to become a Loan Party by executing the Joinder Agreement (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person and (iii) if, as of the last day of any fiscal quarter of the Company and its Subsidiaries, (A) the aggregate amount of total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries (other than [***]) exceeds 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than [***]) at such date or (B) the aggregate amount of EBITDA contributed by all Excluded Subsidiaries and Unrestricted Subsidiaries (other than [***]) exceeds 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than [***]) most recently ended for which financial statements have been or are required to have been delivered pursuant to Sections 4.01(b), 5.01(a) or 5.01(b), as applicable, each Borrower and each Subsidiary that is a Loan Party (within 30 days of the delivery of such financial statements or such longer period as the Administrative Agent may agree) shall cause a sufficient number of Excluded Subsidiaries and/or Unrestricted Subsidiaries (other than the [***]) (x) to become Loan Parties by executing the Joinder Agreement and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person, such that the total assets of, and EBITDA contributed by, the remaining Excluded Subsidiaries and Unrestricted Subsidiaries (other than the [***]) represent less than 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than [***]) at such date and less than 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than [***]) for such period. Upon execution and delivery thereofof such a Joinder Agreement, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Collateral Agent, for the benefit of the Agent Administrative Agent, the Collateral Agents and the Lenders and each other Secured Party at such time party to Lenders, or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofUK Security Trustee, as applicable, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including, to the terms extent requested by the Administrative Agent in its Permitted Discretion, any parcel of real property located in the Collateral Documents.U.S. owned by any Loan Party. [Names redacted]
(b) Holdings, Each Borrower (other than the Borrower U.S. Borrower) and each Subsidiary that is a Loan Party (other than any Subsidiary that is organized under the laws of any State of the United States or the District of Columbia) will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic their respective Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Collateral Agent or the UK Security Trustee, as applicable, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph request (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereofPermitted Perfection Limitations), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Domestic Subsidiary that is or becomes a Loan Party shall shall, unless the Administrative Agent otherwise consents, cause (i) each Domestic Subsidiary of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) Holdings formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D N hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder by executing and delivering a Guaranty and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the U.S. owned by any Loan Party by executing and delivering Collateral Documents.
(b) Holdings, the Borrower The Borrowers and each Domestic Subsidiary that is or becomes a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign SubsidiarySubsidiaries, (yii) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests of each of its Foreign Subsidiaries (or such greater percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)iii) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the a Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents Collateral Documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, howeverat any time after an Event of Default has occurred and is continuing, this paragraph (b) shall not require each Loan Party will, upon the Borrower or any request of the Administrative Agent, cause each Foreign Subsidiary to become a Loan Party and to grant a security interest in (i) any Equity Interests of a Subsidiary Liens to the extent a pledge Administrative Agent on its assets and have the balance of such Equity Interests in favor of its stock pledged to the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned Equity Interests and any real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Domestic Subsidiary that is or becomes a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and any Collateral Agreement Document that become subject to the Lien in favor of the Administrative Agent under any Collateral Document upon acquisition thereof), the Borrower Representative will notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries such Domestic Subsidiary to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Smith & Wesson Holding Corp), Credit Agreement (Smith & Wesson Holding Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the The U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Excluded Subsidiary) which becomes a Domestic Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Excluded Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party as promptly thereafter as reasonably practicable (and in any event within 20 Business Days 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such later date longer time period as may be reasonably agreed to by the Administrative Agent in its sole discretionAgent)) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (and in any event within 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer time period as may be reasonably agreed to by the Agent)) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties to the extent required by the terms thereofof the Collateral Documents, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral(other than Excluded Assets), on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments or otherwise constitute Excluded Assets.
(b) Holdings, the The U.S. Borrower and each Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiaryany FSHCO, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign any Receivables Subsidiary and/or and (z) any Domestic Subsidiary described in clause (Bcreated pursuant to and solely for the purpose of Section 6.06(r), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) (A) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each case of clause (A) and (B) above, of each Foreign Subsidiary and FSHCO owned directly owned by the U.S. Borrower or any Subsidiary that is a Loan Party Guarantor to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, that (x) this paragraph clause (b) shall not require the Borrower or any Subsidiary Loan Party to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySubsidiary and (y) no pledge of any Equity Interests shall be required to the extent such Equity Interests are excluded from the Collateral pursuant to the terms of the Security Agreement.
(c) Without limiting the foregoing, each Loan Party (other than any Foreign Borrower) will, and will cause each Subsidiary that is a Loan Party (other than any Foreign Borrower) to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be are required by law or and which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Security Agreement), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the U.S. Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than (i) Excluded Assets and (ii) assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the U.S. Borrower will notify the Agent and the Lenders thereof, and, if requested by and the Agent or the Required Lenders, the U.S. Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions (including, with respect to real property, the deliverables listed on Schedule 5.12) as shall be necessary or reasonably requested by the Agent to grant and perfect such LiensLiens (in each case, to the extent required under clauses (a), (b) and (c) above, clause (f) below, Section 5.12 and by the Security Agreement), including actions described in paragraph clause (c) of this SectionSection 5.11, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties Excluded Subsidiaries solely because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the U.S. Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the U.S. Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the BorrowerTest Period, then the U.S. Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the United States of America owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $15.0 million or more and that does not otherwise constitute an Excluded Asset (as defined in the Security Agreement) (provided that the cost of perfecting such Lien is not unreasonable in relation to the benefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the U.S. Borrower).
(g) Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this Section 5.11 (or other provision of the Loan Documents Documents) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of guarantees by any Subsidiary, if, and for so long as and to the contraryextent that the Agents and the U.S. Borrower reasonably agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such guarantees (taking into account any material adverse Tax consequences to Holdings and its Subsidiaries (including the Loan Parties imposition of withholding or other material Taxes)), shall not be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts or commodities accounts, (c) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (d) no perfection actions shall be required with respect to commercial tort claims with a value less than $10.0 million and no perfection actions shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10.0 million (other than the filing of UCC financing statements), (e) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to grant be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any foreign intellectual property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (f) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements) and (g) in no event shall the Collateral include any personal property Excluded Assets. The Agent may grant extensions of a type time or waivers for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would not constitute Pledged Collateral otherwise be required to be accomplished by this Agreement or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementother Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Aramark), Credit Agreement (Aramark)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Intercreditor Agreement or the Security Agreement (including, if applicable, the holders of the 2028 Debentures or the 2008 Notes), in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates the delivery of the items contemplated by paragraph (m) thereof to the extent the Borrower has been unable to deliver such items by the Closing Date after having used its commercially reasonable efforts to obtain and corporate and organizational documentsdeliver such items by the Closing Date)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the U.S. that are full-line Neiman Marcus retail stores owned in fee by a Loan Party or leased by a Loan Party pursuant to a financeable lease or other real property owned in fee by a Loan Party having a fair market value at the time of the Loan Documents acquisition thereof of $5,000,000 or more (provided that the cost of perfecting such Lien is not unreasonable in relation to the contrarybenefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the Borrower; provided further that the Borrower shall use commercially reasonable efforts to ensure that all leases entered into after the Closing Date by the Borrower and the other Loan Parties will be financeable leases).
(g) Notwithstanding anything to the contrary contained herein, the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 2 contracts
Samples: Credit Agreement (Neiman Marcus Group Inc), Credit Agreement (Neiman Marcus, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, each Loan Party will cause each of its Subsidiaries formed or acquired after the Borrower and each Subsidiary that is date of this Agreement to become a Loan Party shall cause (iother than (x) each of its Domestic any Excluded Subsidiaries (other than any Immaterial CFC Subsidiary) (unless such Excluded Subsidiary (except as otherwise provided in paragraph (eceases to be an Excluded Subsidiary) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (iiy) any CFC Subsidiary to the extent such Domestic CFC Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become becoming a Loan Party would cause materially adverse tax consequences to the Borrower), within 20 Business Days 30 days of formation or acquisition of such Subsidiary (or such later date as agreed or, with respect to by any Subsidiary of Merger Sub, on the Administrative Agent in its sole discretion) Merger Effective Date), by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries; provided that to the extent such pledges with respect to any CFC Subsidiary would cause materially adverse tax consequences, in the case of such pledges will be limited to (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign such CFC Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require the Borrower or any Subsidiary to Holdings will pledge and grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities in 100% of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the issued and outstanding Equity Interests of any Unrestricted Subsidiarythe Borrower.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,00010,000,000 or improvements thereto or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) promptly, notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations within 30 days of acquisition thereof and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (CompoSecure, Inc.), Credit Agreement (CompoSecure, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement (including, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days forty five days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, Holdings, the Borrower and each other Loan Party shall cause each of its Material Domestic Subsidiaries formed or acquired after the date of this Agreement (iiincluding, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) will simultaneously therewith in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within forty five days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) ), Holdings, the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as that is a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic SubsidiaryFSHCO) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of each Subsidiary that is a CFC or FSHCO (including any Subsidiary that becomes a CFC or FSHCO after the Effective Date), in each Foreign Subsidiary case, directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing or anything else herein or in any other Loan Document to the contrary, howeverin no event shall (A) the assets of any CFC or FSHCO constitute security or secure, this paragraph or such assets or the proceeds of such assets be required to be available for, payment of the Obligations, (bB) shall not require more than sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote of any CFC or FSHCO, in each case, owned directly by the Borrower or any Material Domestic Subsidiary be required to grant a security interest in be pledged to secure the Obligations or (iC) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests any CFC or FSHCO, in favor of the Agent or to secure any debt securities of each case, not owned directly by the Borrower or any Material Domestic Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary required to be filed with pledged to secure the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryObligations.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject ; provided that, notwithstanding anything else contained herein or in any other Loan Document to the limitations set forth or referred contrary, (x) the foregoing shall not apply to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is not a Material Domestic Subsidiary or property of any Subsidiary that is not Material Domestic Subsidiary or any Excluded Property (as defined in the Security Agreement), (y) any such documents and deliverables shall be governed by New York law and (z) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), leasehold mortgages or landlord waivers, estoppels or collateral access letters shall be required to be entered into hereunder or under any other Loan Document. Notwithstanding any provision set forth in this Agreement to the contrary, in no event shall any Loan Party after be required to (A) make any filings or take any other action to record or perfect the Second Restatement Date Administrative Agent’s interest in any intellectual property outside the U.S. or (other than B) take any actions in any non-U.S. jurisdiction or that are required by the laws of any non-U.S. jurisdiction in order to (x) create any security interests in such assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor located or titled outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent U.S. or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and (y) perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiessecurity interests.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 2 contracts
Samples: Credit Agreement (Integral Ad Science Holding Corp.), Credit Agreement (Integral Ad Science Holding Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Loan Party will cause each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)formed, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such acquired or (iii) that qualifies independently as, or is designated by the Borrower or the Administrative Agent as a Material Domestic Subsidiary that was an Immaterial Subsidiary butpursuant to the definition of “Material Domestic Subsidiary”, as in each case after the date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) except any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Excluded Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Domestic Subsidiary Holding Company and in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party (except any such Foreign Subsidiary owned by a Domestic Subsidiary Holding Company) to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require . Each Domestic Subsidiary Holding Company that is a Loan Party will cause 100% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its Domestic Subsidiaries (except any Excluded Domestic Subsidiary) to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or to secure any debt securities Administrative Agent, for the benefit of the Borrower Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with documents as the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets (other than with respect to any real property or improvements thereto or any interest therein) to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions (other than with respect to any real property or improvements thereto or any interest therein) as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower The Company and each Subsidiary that is a Loan Party shall cause within ten Business Days (or such longer period as may be agreed to by the Administrative Agent) after formation or acquisition of a Restricted Subsidiary which is not an Excluded Subsidiary, or any Restricted Subsidiary ceasing to be an Excluded Subsidiary, (i) each of its Domestic Subsidiaries (other than any Immaterial cause such Restricted Subsidiary (except as otherwise provided in paragraph (eA) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date and a Grantor under, and as agreed defined in, the Security Agreement by executing and delivering to by the Administrative Agent in its sole discretion) by executing and to the Collateral Agent a Joinder Agreement in substantially the form set forth as Exhibit D hereto (or such other form as reasonably agreed between the Administrative Agent and the Borrower, each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Collateral Agent deems necessary for such new Restricted Subsidiary to grant to such Collateral Agent (for the benefit of the Credit Parties) a perfected security interest in the Collateral with respect to such new Restricted Subsidiary and (ii) deliver to the Collateral Agent the certificates, if any, representing all of the Capital Stock of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Collateral Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofCredit Parties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Collateral Agent, such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law the Administrative Agent or which the Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure the presentation, validity, perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . In addition, each Loan Party will upon the request of the Administrative Agent, execute and deliver, or cause to be executed and delivered, to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested Collateral Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent or the Required Lenders, Collateral Agent in order to perfect or protect the Borrower will cause such assets to be subjected to a Lien securing Liens of the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan Parties.
(e) If, at provided that notwithstanding anything herein or in any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not other Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents Document to the contrary, under no circumstances will any Loan Party be obligated to enter into any mortgages (other than with respect to the Headquarters) or any deposit account control agreements, securities account control agreements, or other lockbox or control agreements, or to obtain bailee agreements or landlord or mortgagee waivers, or to send any notices to account debtors or other contractual third parties prior to the occurrence of an Event of Default, or enter security agreements or pledge agreements or similar agreements governed under the laws of any non-U.S. jurisdiction; provided, that, the Collateral Agent may require a Loan Parties shall not be required Party to grant enter into a security interest deposit account control agreement in respect of any personal property deposit account of such Loan Party as to which a type that would not constitute Pledged deposit account control agreement has been entered into for the benefit of the ABL Debt under the ABL Credit Agreement, unless the ABL Collateral or Article 9 Collateral (each Agent is acting as defined in the Guarantee and Collateral Agreement) bailee for such deposit account pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Intercreditor Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject in all cases to the timing requirements in Section 5.11(c), and subject to applicable law, Holdings, the Borrower will, and will cause each Subsidiary that is a Loan Party shall Guarantor to cause (i) each of its Domestic and their respective wholly-owned Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Excluded Foreign Subsidiary) formed or acquired after the Second Restatement Acquisition Effective Date and (ii) any such Domestic Subsidiary that was or which ceases to be an Unrestricted Subsidiary, an Immaterial Subsidiary butor an Excluded Foreign Subsidiary (within thirty days after such formation or acquisition, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as or determination that such Subsidiary is no longer an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, to become a Loan Party within 20 Business Days (or such later date longer period as may be agreed to by the Administrative Agent) (A) to duly execute and deliver to the Administrative Agent an assumption agreement substantially in its sole discretion) by executing a Joinder Agreement in substantially the form of Annex 1 to the Guarantee and Collateral Agreement, (B) to execute and deliver such amendments, supplements or documents of accession to any other Collateral Documents, or such new Collateral Documents, as the Collateral Agent deems necessary for such Restricted Subsidiary to grant to the Collateral Agent (for the benefit of the Secured Parties) a perfected first priority security interest (subject to (x) Permitted Liens to the extent any such Permitted Liens would have priority over the Liens in favor of the Collateral Agent by operation of any applicable law and (y) liens subject to the Intercreditor Agreements, which will be subject to the provisions thereof and have only the priority set forth therein) in the Collateral described in such Collateral Document with respect to such new Restricted Subsidiary or such Restricted Subsidiary that ceases to be an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, as Exhibit D hereto applicable, (C) to deliver to the “Joinder Agreement”)Administrative Agent with respect to each Material Real Property, any existing title reports, abstracts or environmental assessment reports, to the extent in the possession or control of the Borrower; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries and (D) to deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 4.01 as may be reasonably requested by the Administrative Agent. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Collateral Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party the Borrower will, and will cause each Subsidiary that is a Loan Party Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust Intellectual Property Security Agreements and other documents and such other actions or other deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)4.01), which may be required by law or which the Administrative Agent or the Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof). In addition, the Borrower will, and will notify cause each Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Lenders thereof, and, if requested Collateral Agent filings with any governmental recording or registration office in any jurisdiction or office required by the Collateral Documents in order to perfect or protect the Liens of the Collateral Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan Parties.
(ec) IfWithout limiting the foregoing, at any time and from time (x) with respect to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shalleach Real Estate Asset listed on Schedule 1.01(c), not later than 45 120 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Acquisition Effective Date (or such later date longer period as agreed to by the Administrative Agent may agree in its sole reasonable discretion) and (y) with respect to (A) the acquisition by any Loan Party of Material Real Property or (B) the formation or acquisition of a Restricted Subsidiary which owns any Material Real Property, or determination that a Subsidiary which owns any Material Real Property is no longer an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, not later than 120 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) following the later of (I) the Acquisition Effective Date, and (II) the date of such acquisition, formation or determination, the Borrower will, and will cause the applicable Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Collateral Agent with respect to each such Real Estate Asset (each, a “Mortgaged Property”): (i) a Mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated in favor of the Collateral Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Collateral Agent) to create and/or maintain a first priority Lien (subject to (x) Permitted Liens to the extent any such Permitted Liens would have priority over the Liens in favor of the Collateral Agent by operation of any applicable law and (y) liens subject to the Intercreditor Agreements, which will be subject to the provisions thereof and have only the priority set forth therein) on such Mortgaged Property subject to Permitted Liens; (ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), cause one or more such Domestic Restricted Subsidiaries in amounts not less than 125% of the fair market value of the Mortgaged Property, issued, coinsured and reinsured by title insurers reasonably acceptable to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries areand reasonably required by the Collateral Agent, individually, Immaterial Subsidiaries) such that insuring the foregoing condition ceases Mortgages to be true.
valid first and subsisting Liens on the property described therein, free and clear of all defects (fincluding, but not limited to, mechanics’ and materialmen’s Liens) Notwithstanding any provision and encumbrances, other than Permitted Liens, and providing for such other standard and customary affirmative insurance and endorsements (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the Loan Documents applicable property); (iii) either (x) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to Collateral Agent dated no more than 90 days before the later of the Acquisition Effective Date or the date of such acquisition, formation or determination, as applicable (or such other dates as shall be reasonably acceptable to the contraryCollateral Agent), certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent, or (y) in lieu of such aforementioned surveys, such affidavits, certificates, information, and/or instruments of indemnification as may be reasonably acceptable to the title companies issuing the Mortgage Policies in order to issue the applicable Mortgage Policies in accordance with this Section 5.11(c); (iv) policies or certificates of insurance of the type required by Section 5.09; (v) evidence of flood insurance required by Section 5.09, in form and substance reasonably satisfactory to Collateral Agent; and (vi) opinions of local counsel for the Loan Parties shall not be required in states in which the Mortgaged Properties are located, with respect to grant a security interest the enforceability and validity of the Mortgages and any related fixture filings and other customary opinions reasonably requested by the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent. Notwithstanding anything to the contrary in this Section 5.11(c), so long as the 2018 and 2023 Note Indenture is in effect, the amount of the Secured Obligations secured by any personal property Principal Property or stock or indebtedness of a type that would not constitute Pledged Collateral or Article 9 Collateral any Principal Subsidiary (each as defined in the Guarantee 2018 and Collateral Agreement2023 Notes Indenture as in effect on the date hereof) pursuant shall be automatically limited to Section 3.01 or Section 4.01 the maximum amount of the Guarantee Secured Obligations permitted to be secured by such Principal Property without violating the terms of the 2018 and Collateral Agreement2023 Notes Indenture and without giving rise to any obligation on the part of any Loan Party to xxxxx x Xxxx on any of its assets to secure Indebtedness governed by or subject to the terms of the 2018 and 2023 Notes Indenture.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the later to occur of (i) 30 days following the date of such creation or acquisition and (ii) any the earlier of the date of the required delivery of the next Compliance Certificate following such Domestic Subsidiary that was an Immaterial Subsidiary but, as of creation or acquisition and the date which is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Subsidiary Borrower Joinder Agreement or a Subsidiary Guarantor Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Subsidiary Guarantor Joinder Agreement” and, together with each Subsidiary Borrower Joinder Agreement, each individually a “Joinder Agreement” and, collectively, the “Joinder Agreements”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor or a Subsidiary Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (d) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents; provided that in no event will any Loan Documents Party be required to pledge or other security documents perfect more than 65.0% of the equity interests as the Agent shall reasonably request; provideddetermined for U.S. federal income tax purposes of any Foreign Subsidiary, however, this paragraph (b) shall not require the Borrower FSHCO Subsidiary or any Disregarded Domestic Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) Material Real Estate Assets are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower Agent will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 90 days of such request (or such longer period as may be acceptable to the Administrative Agent) the Borrower Agent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection and with respect to Material Real Estate Assets, clause (ii) of Section 5.13(a), all at the expense of the Loan Parties. Notwithstanding the foregoing, no Mortgage shall be required in respect of any Material Real Estate Asset acquired by any Loan Party after the Closing Date until the date that occurs 30 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Estate Asset: (i) a completed flood hazard determination from a third party vendor, (ii) if such Material Real Estate Asset is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Material Real Estate Asset is located, evidence of flood insurance as required by Section 5.05; provided that any such Mortgage may be granted prior to the notice period specified above if the Administrative Agent shall have received written confirmation from each applicable Lender that such Lender has completed any necessary flood insurance due diligence to its reasonable satisfaction.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at the Borrower Agent shall cause such Domestic Subsidiary to take all actions required by this Section 5.12 (within the time periods specified herein) as if such Domestic Subsidiary were then formed or acquired. Notwithstanding anything to the contrary in this Section 5.12 or any time and from time other Collateral Document, (a) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to time after which the Second Restatement Datecost of obtaining or perfecting such Lien (including any mortgage, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the aggregate more than 7.5% of Total Assets as benefit to the Lenders of the end of the most recently ended fiscal quarter of security afforded thereby as reasonably determined by the Borrower Agent and the Restricted Subsidiaries or more than 7.5% Administrative Agent, (b) no Lien in Real Estate Assets shall be required except in respect of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by Material Real Estate Assets (provided that in any jurisdiction in which financial statements for such quarter are a tax is required to be delivered pursuant paid in respect of the Mortgage on real property located in such jurisdiction based on the entire amount of the Secured Obligations, the amount secured by such Mortgage shall be limited to this Agreement (or such later date as agreed the estimated fair market value of the property to by be subject to the Mortgage determined in a manner reasonably acceptable to Administrative Agent in its sole discretionand the Borrower Agent), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesc) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties no actions shall not be required to be taken in order to create or grant a any security interest in any personal property assets located outside of a type that would not constitute Pledged Collateral the United States and no foreign law security or Article 9 Collateral pledge agreements shall be required and (each as defined d) Liens required to be granted or perfected pursuant to this Section 5.12 shall be subject to the Intercreditor Agreement and to exceptions and limitations consistent with those set forth in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementDocuments.
Appears in 2 contracts
Samples: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, except as otherwise permitted hereunder (i) cause each Subsidiary that is of the Domestic Borrower (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Domestic Borrower (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty and enter into a Security Agreement granting to the Agent, for the benefit of the Domestic Lenders, a first priority security interest in all of its personal property. Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(iib) will simultaneously therewith or as soon as practicable thereafter Upon the request of the Agent, (i) each Domestic Loan Party shall grant Liens to the AgentAgent in respect of the Obligations, each Canadian Loan Party shall grant Liens to the Canadian Correspondent Lender in respect of the Canadian Obligations and the UK Obligations, and each UK Loan Party shall grant Liens to the UK Correspondent Lender in respect of the UK Obligations and Canadian Obligations, in each case for the benefit of the Agent Applicable Agent, and the Lenders applicable Lenders, pursuant to such documents as the Applicable Agent may reasonably deem necessary and each other Secured Party at deliver such time party property, documents, and instruments as the Applicable Agent may request to or benefiting from perfect the Guarantee and Collateral Agreement to Liens of the extent required by the terms thereof, Agent in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party which constitutes Collateral, on such terms and (ii) in connection with the foregoing requirements, deliver to the Agent all items of the type required by Section 4.1 (as may applicable). Notwithstanding the foregoing, the Loan Parties shall not be required pursuant to grant mortgages for the terms benefit of the Collateral DocumentsApplicable Agent and the Domestic Lenders on their real Property (other than those granted on or before the Effective Date) so long as the Availability exceeds $25,000,000. If, at any time, the Availability falls below $25,000,000, the Agent, in the Agent’s sole and absolute discretion, shall have the right to require perfected, first priority mortgage liens on the Domestic Borrower’s real Property located in the United States at the Domestic Borrower’s sole cost and expense. Upon the occurrence of a Default, the Agent, in the Agent’s sole and absolute discretion, shall have the right to require perfected, first priority liens on the real Property of the Canadian Borrower and the UK Borrower at such Borrower’s sole cost or expense.
(bc) Holdings, the Borrower and each Subsidiary that is a Loan Party The Parent will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided. Upon the occurrence and at all times during the existence of a Default under this Agreement, howeverthe Domestic Borrower shall, this paragraph upon the request of Agent, in its sole and absolute discretion, cause (bi) shall 100% of the issued and outstanding Capital Stock of each of its Domestic Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the date hereof, (1) could not require reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each first-tier Foreign Subsidiary directly owned by the Domestic Borrower or any Domestic Subsidiary to grant be subject at all times to a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or pursuant to secure any debt securities the terms and conditions of the Borrower Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarydocuments.
(cd) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of its Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent and the Required Lenders may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Holdings Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days thirty (30) days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a Joinder Agreement joinder agreement substantially in substantially the form set forth as of Exhibit D hereto C (the a “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within thirty (ii30) will simultaneously therewith days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower Borrower, each Loan Party and each other direct Material Domestic Subsidiary that is of a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its direct Domestic Subsidiaries and (or, in the case of (Aii) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled of each of its direct Foreign Subsidiaries to vote (within be subject at all times to a first priority, perfected Lien in favor of the meaning Administrative Agent pursuant to the terms and conditions of Treas. Reg. Section 1.956-2(c)(2)) the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, in the case of a Foreign Subsidiary Holding Company or a Foreign Subsidiary that is a CFC, such Domestic Subsidiary) and (ii) Lien shall be limited to 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each such Foreign Subsidiary directly owned by the Borrower Holding Company or any Foreign Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph CFC (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or including any Subsidiary that would be entitled to such becomes a security interest would require separate financial statements of a Subsidiary to be filed with CFC after the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawEffective Date), rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryas applicable.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. Notwithstanding the foregoing no Loan Party shall be required (i) to take any such action if the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (ii) to authorize or file any document or registration in a jurisdiction located outside of the United States or (iii) to take any action with respect to any assets located outside of the United States.
(de) Subject From and after the Effective Date, in the event that any Loan Party acquires any Material Property, the Loan Parties shall, and shall cause each of their Subsidiaries to, deliver to the limitations set forth Administrative Agent, as soon as practicable, and in any event within ninety (90) days (or referred such later date as the Administrative Agent may agree), after the acquisition of such Material Property, fully executed and notarized Mortgages (each, an “Additional Mortgage”) in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering the interest of the applicable Loan Party in such Material Property, and customary legal opinions with respect to such Additional Mortgages, each in this Section 5.11form and substance reasonably satisfactory to the Administrative Agent and provided at the sole cost and expense of the Loan Parties. The Loan Parties shall deliver to the Administrative Agent within sixty (60) days after the acquisition of such Material Property or after the determination that any other part of any Material Property includes a Building or Manufactured (Mobile) Home (each as defined in applicable Flood Laws) (or such later date as the Administrative Agent may agree), flood hazard certificates and, if any material assets such Building or Manufactured (including any owned real property or improvements thereto but excluding leasehold interestsMobile) (but only those having Home is located in a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary flood zone, executed flood determinations and evidence that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral all flood insurance required under the Guarantee applicable Flood Laws has been obtained, in form and Collateral Agreement that become subject substance reasonably satisfactory to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all provided at the sole cost and expense of the Loan Parties.
(ef) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 Within ninety (90) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Effective Date (or such later date as agreed to by the Administrative Agent may agree), the Borrower shall have delivered an executed Mortgage in favor of the Administrative Agent in its sole discretionrespect of each Material Property described on Schedule 5.09(f), cause one or more in proper form for recording, including full legal descriptions and street addresses, as applicable, in all appropriate places in all applicable jurisdictions, encumbering the interest of the applicable Loan Party in such Domestic Restricted Subsidiaries Material Property, and customary legal opinions with respect to become additional such Mortgages, in each case in form and substance reasonably satisfactory to the Administrative Agent and provided at the sole cost and expense of the Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueParties.
(fg) Notwithstanding any provision Within sixty (60) days after the Effective Date (or such later date as the Administrative Agent may agree), the Borrower shall have delivered to the Administrative Agent a certificate executed by an officer of the Loan Documents to Borrower providing the contrary, the Loan Parties shall not be required to grant a security interest in any personal property address or legal description of a type that would not constitute Pledged Collateral each Building or Article 9 Collateral Manufactured (Mobile) Home (each as defined in applicable Flood Laws) to be included in the Guarantee Mortgages and, if any such Building or Manufactured (Mobile) Home is located in a flood zone, executed flood determinations and Collateral Agreement) pursuant evidence that all flood insurance required under applicable Flood Laws has been obtained, in form and substance reasonably satisfactory to Section 3.01 or Section 4.01 the Administrative Agent and provided at the sole cost and expense of the Guarantee Loan Parties.
(h) As promptly as practicable, and Collateral Agreementin any event within the time periods after the Effective Date specified in Schedule 5.09(h) (or such later date as the Administrative Agent may agree), the Borrower shall deliver, or cause to be delivered, the documents or take the actions specified on Schedule 5.09(h).
Appears in 2 contracts
Samples: Credit Agreement (Medifast Inc), Credit Agreement (Medifast Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the (i) each Borrower and each Subsidiary that is a Loan Party shall (within 30 days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement in accordance with the terms of this Agreement (iiother than Excluded Subsidiaries) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, (A) to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”), (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) of any applicable jurisdiction) and (B) for each such Person that is not organized under the laws of any State of the United States, provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person, (ii) if at any time an Excluded Subsidiary ceases to be an Excluded Subsidiary, each Borrower and each Subsidiary that is a Loan Party (within 30 days of such event or such longer period as the Administrative Agent may agree) shall cause such Subsidiary (x) to become a Loan Party by executing the Joinder Agreement (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person and (iii) if, as of the last day of any fiscal quarter of the Company and its Subsidiaries, (A) the aggregate amount of total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries (other than Northeast Retailer Group) exceeds 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than Northeast Retailer Group) at such date or (B) the aggregate amount of EBITDA contributed by all Excluded Subsidiaries and Unrestricted Subsidiaries (other than Northeast Retailer Group) exceeds 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than Northeast Retailer Group) most recently ended for which financial statements have been or are required to have been delivered pursuant to Sections 4.01(b), 5.01(a) or 5.01(b), as applicable, each Borrower and each Subsidiary that is a Loan Party (within 30 days of the delivery of such financial statements or such longer period as the Administrative Agent may agree) shall cause a sufficient number of Excluded Subsidiaries and/or Unrestricted Subsidiaries (other than the Northeast Retailer Group) (x) to become Loan Parties by executing the Joinder Agreement and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person, such that the total assets of, and EBITDA contributed by, the remaining Excluded Subsidiaries and Unrestricted Subsidiaries (other than the Northeast Retailer Group) represent less than 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than Northeast Retailer Group) at such date and less than 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than Northeast Retailer Group) for such period. Upon execution and delivery thereofof such a Joinder Agreement, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Collateral Agent, for the benefit of the Agent Administrative Agent, the Collateral Agents and the Lenders and each other Secured Party at such time party to Lenders, or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofUK Security Trustee, as applicable, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including, to the terms extent requested by the Administrative Agent in its Permitted Discretion, any parcel of real property located in the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsEach Borrower (other than the U.S. Co-Borrowers) and each Subsidiary that is a Loan Party (other than any Subsidiary that is organized under the laws of any State of the United States or the District of Columbia) will cause 100% of the issued and outstanding Equity Interests of each of their respective Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Collateral Agent or the UK Security Trustee, as applicable, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request (subject to Permitted Perfection Limitations). Each U.S. Co-Borrower and each Subsidiary that is a Loan Party organized under the laws of any State of the United States or the District of Columbia will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries and any Interim Holdco owned by it and (orii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic foreign Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) ’s U.S. parent and (ii2) 65% could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign foreign Subsidiary other than an Interim Holdco directly owned by the such U.S. Co-Borrower or any Subsidiary that is a domestic Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent Administrative Collateral Agent, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph request (b) shall not require the Borrower or any Subsidiary subject to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryPermitted Perfection Limitations).
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (subject to Permitted Perfection Limitations), all at the expense of the Loan Parties. In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the Administrative Collateral Agent or the UK Security Trustee granted under any Collateral Document in any Intellectual Property at the expense of the Lenders (unless an Event of Default is then continuing, in which event such filings shall be at the expense of the Loan Parties).
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of the Agent applicable Security Agreement upon acquisition thereofthereof and assets specifically excluded from Collateral under the Security Agreements), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent in its Permitted Discretion or by the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdingseach Loan Party will cause each Domestic Subsidiary in existence on the Effective Date, the Borrower other than an Excluded Subsidiary, and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the “Joinder Agreement”)applicable "know your customer" rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party, other than real property subject to financing on such terms as may be required pursuant to the terms of the Collateral DocumentsEffective Date that is permitted under Section 6.01.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic an Excluded Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower such Loan Party or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than an Excluded Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (HF Foods Group Inc.), Credit Agreement (HF Foods Group Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Wholly-Owned Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted ) or Receivables Subsidiary) which becomes a Wholly-Owned Domestic Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date and (ii) any such Wholly-Owned Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (but in any case not more than 90 days (or such longer period as (A) may be required to the extent the U.S. Borrower is diligently pursuing such actions required to be taken under this Section 5.11(a) and (B) may be agreed by the Agent in its sole discretion) after becoming a Loan Guarantor) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (g) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Forbearance Agreement and Third Amendment to Credit Agreement (Hawker Beechcraft Notes Co), Credit Agreement (Hawker Beechcraft Quality Support Co)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a US Loan Party shall (within five days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Foreign Subsidiary) formed or acquired after the Second Restatement Effective Date and or which cease to be Immaterial Subsidiaries (iiA) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a US Loan Party within 20 Business Days (or such later date as agreed by executing and delivering to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary grant to such Collateral Agent (for the benefit of the Agents, the Lenders and the Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent and Agents, the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofIssuing Banks), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or either Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent and each Collateral Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent or any Subsidiary that is a Loan Party after either Collateral Agent, in the Second Restatement Date (other than assets constituting Collateral under exercise of its Permitted Discretion, in order to perfect or protect the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the applicable Collateral Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party Party, within 20 Business Days 30 days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within 30 days (iior such later date as the Administrative Agent may agree) will simultaneously therewith after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary (including any Subsidiary who becomes a Material Foreign Subsidiary after the Amendment and Restatement Effective Date) directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement (ExlService Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsRequirement of Law, the Borrower Borrowers and each of their Restricted Subsidiaries will cause each Material Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), not an Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and any Person (other than an Unrestricted Subsidiary) that otherwise becomes a Material Domestic Subsidiary after the date of this Agreement to become either (i) a Loan Guarantor or (ii) any a Loan Guarantor and a Borrower, as elected by the Borrowers, by executing a Joinder Agreement and an assumption agreement to the applicable Security Agreement in substantially the form attached as an annex thereto within thirty (30) days of such formation or acquisition or of such Person otherwise becoming a Material Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (iA) shall automatically become either (x) a Loan Party Guarantor or (y) a Loan Guarantor and a Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiB) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral; provided that if such Person is to become a Borrower, on such terms as may be required pursuant to the terms requirements of the Collateral DocumentsSection 5.17 shall have been satisfied.
(b) HoldingsSubject to the Intercreditor Agreement, the Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orother than subsidiaries of CSI Compressco LP) owned by such U.S. Loan Party and (ii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) 's U.S. parent and (ii2) 65% could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower any U.S. Loan Party or any Subsidiary that is a Loan Party of their Domestic Subsidiaries (other than subsidiaries of CSI Compressco LP), in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting [Reserved].
(d) Subject to the foregoingIntercreditor Agreement (and in the case of a UK Borrower the Collateral Documents to which it is a party), each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Restricted Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(de) Subject To the extent any real property is included in the Collateral, each Loan Party will, and will cause each Subsidiary to, execute and/or deliver, as applicable, such other documents as the Administrative Agent may reasonably request on behalf of any Lender that is a regulated financial institution or any Affiliate of such a Lender (each, a “Regulated Lender Entity”), in each case, to the limitations set forth extent such other documents are required for compliance by such Regulated Lender Entity with applicable law with respect to flood insurance diligence, documentation and coverage under all applicable Flood Laws. Prior to signing by the Loan Parties of any mortgage or referred deed of trust (other than any Collateral Document to which a UK Borrower is a party) to secure the Secured Obligations, the applicable Loan Parties and the Administrative Agent shall have provided each Regulated Lender Entity requesting the same a copy of the life of loan flood zone determination relative to the property to be subject to such mortgage or deed of trust delivered to the Administrative Agent and copies of the other documents required by any such Regulated Lender Entity as provided in this Section 5.11the preceding sentence and shall have received confirmation from each Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, if conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity).
(f) If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000and any other Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and a Security Agreement or any other Collateral Agreement Document that become subject to the Lien in favor of the Agent under a Security Agreement or such other Collateral Document upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the applicable Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this SectionSection 5.14, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(fg) Notwithstanding any provision in any of the Loan Documents to the contrary, the Loan Parties in no event shall not (i) any Collateral owned by any UK Borrower be required deemed to grant constitute collateral security for, or (ii) any UK Borrower be deemed to be a security interest guarantor or other surety of, in either case, any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementU.S. Secured Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Tetra Technologies Inc), Credit Agreement (Tetra Technologies Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesFSHCO) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased this Agreement to qualify as an Immaterial Subsidiary, to promptly become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)joinder agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party (other than Excluded Assets).
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orother than Excluded Subsidiaries and any FSHCO) and (ii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary as determined for U.S. Federal income tax purposes to be treated as a disregarded entity for deemed dividend to such foreign Subsidiary’s U.S. federal income parent and (2) could not reasonably be expected to cause any adverse tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% consequences in the reasonable opinion of the Capital Stock of (xBorrower) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary and each FSHCO directly owned by the Parent, the Borrower or any Domestic Subsidiary that is a Loan Party (excluding any FSHCO) to be subject at all times to a first priority (subject to the Intercreditor Agreement), perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than Excluded Subsidiaries) to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority (in each case subject to the qualifications, if any, set forth in the Loan Documents) of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets constituting Collateral (including any owned real property or improvements thereto or any interest therein, but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect (in each case subject to the qualifications, if any, set forth in the Loan Documents) such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.), Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)
Additional Collateral; Further Assurances. (ai) Subject to applicable law, Holdingsexcept as set forth in Section 6.03(m)(v), each Borrower shall cause each of its wholly-owned Material Domestic Subsidiaries, formed or acquired on or after the Borrower and each date of this Agreement in accordance with the terms of this Agreement to become a Guarantor (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a Loan Party wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) be deemed to be an acquisition for the purposes of this Section 5.11Agreement), Unrestricted Subsidiary or Securitization Entitieswithin thirty (30) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a Joinder Agreement in substantially the form joinder agreement set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(ii) will simultaneously therewith Subject to applicable law, except as set forth in Section 6.03(m)(v), each Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall be deemed to be an acquisition for the purposes of this Agreement) and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, (A) within thirty (30) days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, and (a) solely with respect to a Material Domestic Subsidiary, within sixty (60) days (or such later date as the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such terms Subsidiary becomes a Material Domestic Subsidiary, as may be required applicable) to execute a Mortgage, pursuant to which such Material Domestic Subsidiary shall grant Liens to the terms Administrative Agent, for the benefit of the Collateral DocumentsAdministrative Agent and the Lenders, in any property of such Loan Party which constitutes Material Real Property and satisfy all Mortgage Requirements in connection therewith.
(biii) HoldingsSubject to the foregoing clauses (i) and (ii), the Borrower and except as set forth in Section 6.03(m)(v), each Subsidiary that is a Loan Party (other than Allkem) will cause (iA) 100% of the issued and outstanding Equity Interests Stock of each of its Domestic Subsidiaries and (or, in the case of (Ab) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Excluded Subsidiary (including any Subsidiary who becomes an Excluded Subsidiary after the Effective Date) directly owned by the Borrower or any Subsidiary that is a such Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Livent Corp.), Credit Agreement (Arcadium Lithium PLC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingsthe Borrowers shall cause each US Subsidiary (other than any Immaterial Subsidiary, the Borrower any Non-Wholly Owned Subsidiary, any FSHCO and any Subsidiary of a Foreign Subsidiary) and each Canadian Subsidiary that is of a Loan Party shall cause (i) each of its Domestic Subsidiaries Canadian Borrower (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11or any Non-Wholly Owned Subsidiary), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days five days (or such later date longer period as may be agreed to by the Administrative Agent Agent) of formation or acquisition of such Subsidiary, re-designation of such Subsidiary as a Restricted Subsidiary, or such Subsidiary ceasing to be an Immaterial Subsidiary, a FSHCO or a Non-Wholly Owned Subsidiary, in its sole discretioneach case after the Third Restatement Date, (A) to become a US Loan Party or Canadian Loan Party, as applicable, by executing and delivering to the Administrative Agent a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such new Restricted Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such Restricted Subsidiary. The Borrower may elect to cause any Puerto Rican Subsidiary to become a Puerto Rican Loan Party by such Puerto Rican Subsidiary executing and delivering to the Administrative Agent a Joinder Agreement or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and such Puerto Rican Subsidiary executing and delivering such Collateral Documents or amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such new Restricted Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in substantially all assets of such Puerto Rican Subsidiary (with exceptions substantially consistent with exceptions set forth in other Collateral Documents or as otherwise required by Requirements of Law). Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Guarantor and Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral. For the avoidance of doubt, on such terms as may be required it is understood that to the extent the assets of any Restricted Subsidiary becoming a Loan Party pursuant to this Section 5.14 are to be included in any Borrowing Base, due diligence in respect of such assets satisfactory to the terms of the Collateral DocumentsAdministrative Agent, in its Permitted Discretion, shall have been completed prior to such inclusion.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or any Subsidiary that is a Loan Party after protect the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the Administrative Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Samples: Second Amendment (ODP Corp), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, (i) the US Borrower and each Subsidiary that is a US Loan Party shall cause (i) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement to become a US Loan Party and (ii) any such Domestic the Netherlands Borrower and each Subsidiary that was an Immaterial Subsidiary but, as is a Netherlands Loan Party shall cause each of its Subsidiaries that is organized under the end laws of The Netherlands and is formed or acquired after the most recently ended fiscal quarter date of this Agreement in accordance with the Borrower has ceased to qualify as an Immaterial Subsidiary, terms of this Agreement to become a Netherlands Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent Party, in its sole discretion) each case by executing a the Joinder Agreement in substantially the form set forth as Exhibit D H hereto (the “Joinder Agreement”)) by the earlier of (I) the date that any such Subsidiary guarantees any Senior Notes Obligations and (II) the date that is ten (10) days after the formation or acquisition of such Subsidiary. Upon execution and delivery thereof, each such Person (i) that is organized under the laws of the United States (A) shall automatically become a US Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in each such capacity under the Loan Documents and (iiB) will simultaneously therewith grant first priority Liens (or as soon as practicable thereafter grant Liens second priority Liens, subject in priority only to the Liens securing the Senior Notes Obligations permitted hereunder, with respect to the Senior Notes Priority Collateral to the extent provided in the Intercreditor Agreement) to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any parcel of real property located in the United States owned by such terms as may be required pursuant Loan Party with a fair market value in excess of $1,000,000 and (ii) that is organized under the laws of The Netherlands (A) shall automatically become a Netherlands Loan Guarantor hereunder thereupon shall have all of the rights, benefits, duties, and obligations in each such capacity under the Loan Documents and (B) will grant first priority Liens to the terms Administrative Agent, for the benefit of the Collateral DocumentsAdministrative Agent and the Lenders, in any property of such Loan Party which constitutes Netherlands Collateral, including any parcel of real property owned by such Netherlands Loan Party with a fair market value in excess of $1,000,000.
(b) Holdings, the Borrower and each Subsidiary that is a Each US Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% (or 100% to the extent such security interest secures the Netherlands Obligations (or a lesser percentage to the extent a security interest in such shares would cause a material tax cost; but in no case less than 65%)) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the US Borrower or any Subsidiary that is a Loan Party domestic Subsidiary, to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan US Collateral Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require Each Netherlands Loan Party will cause 100% of the Borrower or any Subsidiary to grant a security interest in issued and outstanding Equity Interests of (i) any Equity Interests each of its Subsidiaries that is organized under the laws of the Netherlands and (ii) each of its direct Subsidiaries that is not organized under the laws of the Netherlands to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or pursuant to secure any debt securities the terms and conditions of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC Netherlands Collateral Documents (or any other government agency) under Rule 3-10 or Rule 3-16 in the case of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) above, similar terms and conditions) as the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents to the extent required by the Collateral Documents, all at the expense of the applicable Loan PartiesParty.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral any Security Agreement that become subject to the Lien in favor of the applicable Administrative Agent upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower US Loan Parties or the Netherlands Loan Parties, as applicable, will cause such assets to be subjected to a Lien securing the Secured Obligations or the Netherlands Secured Obligations, respectively, in accordance with and subject to the terms of the US Collateral Documents or the Netherlands Collateral Documents, as applicable, and will take, and cause the its Subsidiary Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this Section, all at the expense of the applicable Loan PartiesParty.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Credit Party shall cause any Subsidiary of Xxxxxxxx'x which is required to become a Credit Party pursuant to the terms of this Agreement to, upon the request of any Agent (i) each grant Liens to the Collateral Agent, for the benefit of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except the Agents and the Lenders, pursuant to such documents as otherwise provided the Collateral Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Collateral Agent may request to perfect the Liens of the Collateral Agent in paragraph (e) the Collateral of this Section 5.11)such Subsidiary, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any execute a Guaranty Agreement with respect to the Total Obligations (excluding the Total Obligations of such Domestic Subsidiary that was an Immaterial Subsidiary butCredit Party) pursuant to Section 7.13, as in form and substance satisfactory to the Collateral Agent, and (iii) in connection with the foregoing requirements, or either of them, deliver to the Collateral Agent all items of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify type required by Section 5.1(a) (as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”applicable). Upon execution and delivery thereofof such Credit Documents and other instruments, each certificates, and agreements, such Person (i) Subsidiary shall automatically become a Loan Party Borrower and a Guarantor, or a Guarantor (but not a Borrower), as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Credit Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Credit Party willshall, and will shall cause each Subsidiary that of Xxxxxxxx'x Subsidiaries which is required to become a Loan Credit Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including as the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Credit Documents, all at the expense of the Loan Parties.
(dc) Subject Upon any Agent's request, each Credit Party will deliver to the limitations set forth Collateral Agent the following with respect to each parcel of Real Property owned by any Credit Party:
(i) a Mortgage in proper form for recording in the jurisdiction in which such Real Property covered thereby is located;
(ii) ALTA or referred other mortgagee's policies, in form and substance satisfactory to in this Section 5.11the Collateral Agent, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by with respect to the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become Real Property subject to the Lien Mortgages;
(iii) an environmental site assessment, in favor compliance with applicable Requirements of Law prepared by a credentialed environmental consultant acceptable to the Collateral Agent;
(iv) a boundary survey prepared and certified to the Collateral Agent upon acquisition thereof)by a credentialed surveyor acceptable to the Collateral Agent; and
(v) such other information, the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will takedocumentation, and cause certifications, in form and substance satisfactory to the Loan Parties that are Subsidiaries to takeCollateral Agent, such actions as shall may be necessary or reasonably requested by the Agent Collateral Agent; provided that with respect to grant and perfect such Liensany parcel of Real Property owned by a Credit Party which is subject to a Lien on the Closing Date, including actions described in paragraph (c) of this Section, all at the expense delivery of the Loan Parties.
items required by clause (ei) Ifthrough clause (v) preceding may be deferred until such Credit Party, at any time and from time to time after the Second Restatement Dateusing commercially reasonable efforts, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as has obtained consent of the end holders of such Liens and any other consent required by any agreement in effect on the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for Closing Date with respect to such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueReal Property.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Friedmans Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Loan Party will cause each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than Wholly-Owned Subsidiary, but excluding any Excluded Subsidiary and any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)Subsidiary, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall will automatically become a Loan Party Guarantor hereunder and thereupon shall will have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which that constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries Subsidiaries, excluding any Excluded Subsidiary, and (orii) 65.0% (or such greater percentage that, due to a change in applicable law after the case of Effective Date, (A) any Domestic could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or ’s U.S. parent and (B) could not reasonably be expected to cause any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (xmaterial adverse tax consequences) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a such Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall may reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements agreements, and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust trust, and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which that may be required by law any Requirement of Law or which that the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be are necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection 5.14(c), all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdingsas promptly as possible but in any event not later than sixty (60) days following the date on which any Person becomes a Subsidiary or any Subsidiary qualifies independently as , or is designated by the Borrower (or the Administrative Agent as contemplated by the definition of “ Material Domestic Subsidiary”) as, a Material Domestic Subsidiary, pursuant to the definition of “Material Domestic Subsidiary,” , the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial such Subsidiary (except as otherwise provided in paragraph (ex) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement and (y) to deliver to the Administrative Agent a joinder to the Security Agreement (in substantially the form set forth as Exhibit D hereto (contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the “Joinder Agreement”)terms and provisions thereof, to be accompanied by appropriate corporate organizational resolutions, other corporate organizational documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel ; provided , however, that no Domestic Subsidiary of a Foreign Subsidiary and no Domestic Subsidiary HoldCo shall be required to become a Loan Party hereunder . Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and a “Grantor” under the Security Agreement (pursuant to the terms thereof) and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity capacities under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes CollateralCollateral . in accordance with Section 5.11(b) . In connection with the foregoing, on the Administrative Agent shall have received all documentation and other information regarding such terms newly formed or acquired Subsidiaries as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed comply with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawapplicable “know your customer” rules and regulations, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan PartiesUSA PATRIOT Act.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiaries) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (e) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal Federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Capital Stock is pledged pursuant to clause (B), ii) below or any other Excluded Subsidiaries and (Bii) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-1.956 2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-1.956 2(c)(2)) in each Foreign Subsidiary (other than Excluded Subsidiaries) directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to Permitted Liens and the Intercreditor Agreement) perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the Agent Agents may, from time to time, reasonably request request) to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) Material Real Estate Assets are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Section 5.12, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are real property required to be delivered pursuant mortgaged under this Section 5.12, shall be limited to this Agreement Material Real Estate Assets (or provided that the cost of perfecting such later date as agreed Lien is not unreasonable in relation to by the benefits to the Lenders of the security afforded thereby in the Administrative Agent in its sole discretionAgent’s reasonable judgment after consultation with the Borrower), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a subsidiary of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed Borrower by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries (orother than its Non-U.S. Subsidiaries) to be subject at all times to a first priority, perfected Lien (subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent Effective Date, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is other Loan Party and each subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended type required by Section 4.01 (as applicable). Exhibit A to be created by the Collateral Documents, all at the expense of the Loan Parties.FirstFourth Amendment #37466145
(d) Subject If any Loan Party proposes to acquire a fee ownership interest in real property after the date of this Agreement (to the limitations set forth or referred to in this Section 5.11extent such acquisition is permitted hereunder), if any material assets an Event of Default is continuing or if Availability is ever less than $6,000,000, each Borrower will, and will cause each other Loan Party to, provide to the Collateral Agent (including any owned upon the Administrative Agent’s request, which request may be made at the Administrative Agent’s sole option) a mortgage or deed of trust granting the Collateral Agent a first priority Lien on its real property, together with environmental audits, mortgage title insurance commitment, real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereofsurvey, local counsel opinion(s), the Borrower will notify the Agent and the Lenders thereof, and, if requested required by the Agent or the Required LendersCollateral Agent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Collateral Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 1 contract
Samples: Credit Agreement (Independence Contract Drilling, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause As promptly as possible but in any event within thirty (i30) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as may be agreed to upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary”, the Borrower shall (i) provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and (ii) cause each such Subsidiary which also qualifies as a Material Domestic Subsidiary to execute and deliver to the Administrative Agent a Joinder Agreement, which Joinder Agreement shall be accompanied by appropriate organizational resolutions, other organizational documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its sole discretion) by executing counsel. Each such Person delivering a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsThe Borrower will cause, the Borrower and will cause each Subsidiary that is a other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.02 to the extent any such Permitted Encumbrances would have priority over the Liens in favor of the Administrative Agent pursuant to any applicable law. Without limiting the generality of the foregoing, each Loan Party (i) will cause (ix) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, and (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant for the benefit of the Administrative Agent and the other Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or other pledge or security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or request and (ii) will deliver Mortgages and all related Mortgage Instruments and other deliveries requested by the Equity Interests Administrative Agent with respect to real property owned by such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing, as of any Unrestricted Subsidiarythe Effective Date, the Borrower shall only be required to deliver Mortgages and Mortgages Instruments in respect of each Specified Property until the date that is forty-five (45) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgagesMortgages, Mortgage Instruments, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject With respect to applicable lawany property acquired after the Effective Date by any Borrower (other than (y) any property described in paragraphs (c) through (g) below, Holdingsand (z) any property subject to a Lien expressly permitted by Section 6.02(g)) as to which the Administrative Agent, for the Borrower and each Subsidiary that is benefit of the Lenders, does not have a Loan Party shall cause perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Security Agreement or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such property and (ii) take all commercially reasonable actions necessary to grant to the Administrative Agent, for the benefit of the Lenders, a perfected security interest in such property with the priority specified in the Intercreditor Agreement.
(b) In accordance with the terms and provisions of the Security Agreement (and subject to any exceptions or limitations contained therein), each Borrower will cause 100% of the issued and outstanding Capital Stock owned by it in each of its Domestic Subsidiaries (other than the TMD Entities and any Immaterial Foreign Stock Holding Company) 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 Loan Documents or other security documents as the Administrative Agent shall reasonably request. In accordance with the terms and provisions of the Security Agreement and the Intercreditor Agreement (and subject to any exceptions or limitations contained therein), each Borrower will cause (i) 100% of the issued and outstanding Capital Stock directly owned by such Borrower in any Foreign Stock Holding Company, (ii) 65% of the total issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) of each Foreign Subsidiary directly owned by such Borrower (or, if such Borrower owns less than 65% of such total issued and outstanding Capital Stock of such Foreign Subsidiary, such amount as is owned by it, provided that no more than 65% of such total issued and outstanding Capital Stock of any Foreign Subsidiary shall be pledged by the Borrowers collectively), and (iii) 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) directly owned by such Borrower in each Foreign Subsidiary (except in each case for clauses (i) through (iii) excluding Capital Stock of any Borrower in Halla), to be subject at all times to a perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as otherwise provided the Administrative Agent shall reasonably request, and having the priority required under the Intercreditor Agreement.
(c) With respect to any fee interest in paragraph any real property having a value (etogether with improvements thereof) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or at least $5,000,000 acquired after the Second Restatement Effective Date by any Borrower (other than any such real property subject to a Lien expressly permitted by Section 6.02(g)), promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, in form and substance reasonably satisfactory to the Administrative Agent, (ii) any if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such Domestic Subsidiary that was real property in an Immaterial Subsidiary but, as amount at least equal to the purchase price of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days such real property (or such later date other amount as agreed to shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents or estoppels reasonably deemed necessary by the Administrative Agent in its sole discretionconnection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if reasonably requested by executing the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Domestic Subsidiary (other than an Excluded Entity) created or acquired after the Effective Date by any Group Member (which, for the purposes of this paragraph (d), shall include any existing Domestic Subsidiary (other than an existing Excluded Entity, except as provided below) that is not a Material Domestic Subsidiary on the Effective Date, which becomes a Material Domestic Subsidiary after the Effective Date, and with respect to any Excluded Entity (other than the TMD Entities) that becomes after the Effective Date a Wholly Owned Subsidiary that is also a Domestic Subsidiary, promptly (i) execute and deliver to the Administrative Agent the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “"Joinder Agreement”). Upon ") (and upon execution and delivery thereof, each such Person (i) shall automatically become a Borrower and a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in each such capacity under the Loan Documents and Documents), (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens execute and deliver to the Administrative Agent such amendments to the Security Documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Lenders, a perfected security interest in the Capital Stock of such new Subsidiary or such Wholly Owned Subsidiary that is owned by any Group Member with the priority set forth in the Intercreditor Agreement, (iii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iv) cause such new Subsidiary or such Wholly Owned Subsidiary (A) become a party to the Security Agreement, (B) to take such actions necessary to grant to the Administrative Agent for the benefit of the Lenders and each other Secured Party at a perfected security interest in the Collateral described in the Security Agreement with respect to such time party to new Subsidiary or benefiting from such Wholly Owned Subsidiary with the priority specified in the Intercreditor Agreement, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the extent Administrative Agent a certificate of such Subsidiary or such Wholly Owned Subsidiary, substantially in the form of Exhibit F hereto, with appropriate insertions and attachments, and (v) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(e) With respect to any new Excluded Foreign Subsidiary created or acquired after the Effective Date by any Group Member (other than by any Group Member that is an Excluded Foreign Subsidiary), use its commercially reasonable efforts to promptly (i) execute and deliver to the Administrative Agent such amendments to the Security Agreement as the Administrative Agent deems necessary to grant to the Administrative Agent, for the benefit of the Lenders, a perfected security interest of the priority required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth Loan Documents in the Guarantee and Collateral Agreement) Capital Stock of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each new Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (owned by any such Domestic Subsidiary, a “DRE”) Group Member (provided that holds in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged), (xii) subject to the Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, and take such other action as may be necessary to perfect the Administrative Agent's security interest therein, and (iii) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent customary 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.
(f) With respect to Halla or any other Foreign Subsidiary which is not a Wholly Owned Foreign Subsidiary and which becomes a Wholly Owned Foreign Subsidiary after the Effective Date (it being understood that the Capital Stock of such Wholly Owned Foreign Subsidiary shall be held by VIHI or a Foreign SubsidiaryStock Holding Company), promptly (yi) another DRE execute and deliver to the Administrative Agent such amendments to the Security Agreement as the Administrative Agent deems necessary to grant to the Administrative Agent, for the benefit of the Lenders, a perfected security interest of the priority required by the Loan Documents in the Capital Stock of such new Subsidiary that holds is owned by any such Group Member (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of a Foreign any such new Subsidiary and/or (z) any Domestic Subsidiary described in clause (Bbe required to be so pledged), or (Bii) any Domestic Subsidiary all or substantially all subject to the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described Intercreditor Agreement, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in this clause (B)blank, 65% executed and delivered by a duly authorized officer of the issued relevant Group Member, and outstanding Equity Interests entitled to vote (within take such other action as may be necessary or, in the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% opinion of the issued Administrative Agent, desirable to perfect the Administrative Agent's security interest therein, and outstanding Equity Interests not entitled (iii) if reasonably requested by the Administrative Agent, deliver to vote the Administrative Agent customary 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.
(within g) With respect to any material Intellectual Property registered with the meaning U.S. Patent and Trademark Office or the U.S. Copyright Office after the Effective Date, promptly (i) execute and deliver to the Administrative Agent such amendments to the Security Agreement or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of Treas. Reg. Section 1.956-2(c)(2)) of the Lenders, a security interest in such Domestic Subsidiary) property and (ii) 65% take all commercially reasonable actions necessary to grant to the Administrative Agent, for the benefit of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% Lenders, a perfected security interest of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned priority required by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents in such property, including filings with the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable, and any other filings required by law, in each case, as may be reasonably requested by the Administrative Agent.
(h) To the extent required or delivered with regard to the corresponding collateral under the Term Loan Facility, (i) use its commercially reasonable efforts to execute and deliver to the Administrative Agent such security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary deems necessary to grant (under the laws of the applicable Uncertificated Foreign Jurisdictions) to the Administrative Agent, for the benefit of the Lenders, a perfected security interest of the priority required by the Loan Documents (to the extent such liens are possible under the laws of such Uncertificated Foreign Jurisdiction) in the Capital Stock of Foreign Subsidiaries (other than Excluded Foreign Subsidiaries) organized under the laws of an Uncertificated Foreign Jurisdiction, (ii) take such other actions necessary to grant (under the laws of the applicable Uncertificated Foreign Jurisdiction) to the Administrative Agent, for the benefit of the Lenders, a perfected security interest of the priority required by the Loan Documents in the Capital Stock of such Foreign Subsidiaries, (iii) deliver to the Administrative Agent all other customary certificates and supporting documentation as may be reasonably requested by the Administrative Agent and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from local counsel in such jurisdiction, reasonably satisfactory to the Administrative Agent.
(i) With respect to any Equity Interests acquisition by the Company pursuant to Section 6.07(l) of a Subsidiary to (i) the extent a pledge equity interests of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawOasis Holdings Statutory Trust, rule or regulation or (ii) the Equity Interests lessor under the Visteon Village Lease, or (iii) the fee interests in the Leased Assets (as defined under the Visteon Village Lease), promptly execute and deliver to the Administrative Agent such documents, including, but not limited to, a fee mortgage and title insurance, or such other documents as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of any Unrestricted Subsidiarythe Lenders, having the priority required under the Intercreditor Agreement.
(cj) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Material Domestic Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Security Documents, all at the expense of the Loan PartiesBorrowers.
(dk) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets Within thirty (including any owned real property or improvements thereto but excluding leasehold interests30) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor days of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Effective Date (or such later date as the Administrative Agent may agree in its discretion), Borrowers shall deliver to the Administrative Agent the following agreements with regard to the Visteon Village Lease, each executed by each party thereto (other than the Administrative Agent), and each in substantially the form agreed among the parties as of the Effective Date, with such changes as may be agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries Agent: (i) the Restated Amendment to become additional Loan Parties Master Lease and (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesii) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee Consent and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Visteon Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrower will, Holdings, the Borrower and will cause each Material U.S. Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ean Excluded Subsidiary) of this Section 5.11)to, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have cause all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and its personal property constituting Collateral (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (but subject to the limitations with respect to Equity Interests set forth exceptions expressly contained in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien Liens in favor of the Administrative Agent pursuant for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Loan Documents Collateral Documents, subject in any case to Liens permitted by Section 6.02. The requirements in this Section 5.10(a) shall be satisfied within forty-five (45) days (or other security documents such longer time as the Administrative Agent shall reasonably request; provided, however, this paragraph (bmay agree) shall not require after the Borrower acquires or forms any Material U.S. Subsidiary (other than an Excluded Subsidiary) or any Subsidiary becomes a Material U.S. Subsidiary. In connection with the requirements of the two preceding sentences, the Borrower will use commercially reasonable efforts to grant deliver to the Administrative Agent, within such forty-five (45) days (or such longer time as the Administrative Agent may agree), fully executed pledging and collateral documentation and filings as may be required under applicable foreign law to provide the Administrative Agent with a perfected, first priority security interest in 65% of the voting capital stock and other voting Equity Interests of any Material Foreign Subsidiaries, along with favorable opinions of foreign counsel regarding such documentation and filings, in each case as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to it; provided that the Borrower shall not be required to take such steps to the extent (i) any Equity Interests of a Subsidiary to such pledge is prohibited under applicable foreign law or the extent a pledge organizational documents of such Equity Interests Material Foreign Subsidiary (but only if such prohibition in favor organizational documents cannot be removed through the commercially reasonable efforts of the Agent Borrower), (ii) such pledge requires any governmental or third party consent (not including consents from any Affiliates of the Borrower), (iii) such pledge would cause material adverse tax (including foreign tax) consequences to secure any debt securities of the Borrower or any Subsidiary that its Subsidiaries or (iv) the cost of pledging, gsdocs\8126959.10 perfecting or maintaining such pledge would be entitled exceed the practical benefits to such a security interest would require separate financial statements of a Subsidiary the Lenders to be filed with the SEC afforded thereby (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to determined by the Administrative Agent in its sole discretionreasonable judgment), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdingseach Loan Party will cause each Domestic Subsidiary in existence on the Effective Date, the Borrower other than an Excluded Subsidiary, and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the “Joinder Agreement”)applicable "know your customer" rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party, other than real property subject to financing on such terms as may be required pursuant to the terms of the Collateral DocumentsEffective Date that is permitted under Section 6.01.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic an Excluded Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-1.956- 2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg.
Section 1. Section 1.956956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower such Loan Party or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than an Excluded Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each Subsidiary that is of the Parent (excluding any Foreign Subsidiary and CaptiveCo) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Parent (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Foreign Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesand CaptiveCo) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder 101 Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty.
(b) Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Loan Party which constitutes Collateral (including any real Property owned by any Loan Party that is currently subject to a Mortgage in favor of the Agent on the Effective Date but excluding a Mortgage on all other parcels of real Property located in the U.S. owned by any Loan Party) and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as applicable). Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Parent’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject Notwithstanding anything herein to the limitations set forth or referred to in this Section 5.11contrary, if any material assets (including any owned and except for such real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become Property currently subject to the Lien a Mortgage in favor of the Agent on the Effective Date, no Loan Party shall create, incur, assume or suffer to exist any Lien, mortgage, deed of trust or similar instrument other than Permitted Liens upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liensany of its real Property, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time Material Real Property acquired after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, the Borrower and except as otherwise permitted hereunder (i) cause each Subsidiary that is of the Company (other than a Foreign Subsidiary and other than an Excluded Subsidiary) to become or remain a Loan Party shall and a Guarantor of all of the Obligations and (ii) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesa Foreign Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D B hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Domestic Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents, (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including any parcel of Real Property owned in fee, located in the United States of America and that has a fair market value in excess of $2,000,000 and (iii) will grant Liens to the terms Ex-Im Revolving Lender in any property of the such Loan Party which constitutes Collateral Documents(other than Equipment and Real Property).
(b) HoldingsEach Canadian Loan Party (other than the Canadian Borrower) now or hereafter formed or acquired shall guaranty the Canadian Obligations pursuant to a Joinder Agreement or a separate Loan Guaranty and grant Liens to the Canadian Agent, for the benefit of the Canadian Agent and the Canadian Revolving Lenders, in any property of such Canadian Loan Party which constitutes Collateral, excluding Real Property.
(c) Holdings will cause 100% of the issued and outstanding Equity Interests of the Company to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, each pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request. Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, and all other Subsidiaries in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests owned by the Canadian Borrower and each of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiaryits Subsidiaries) and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the Effective Date, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower Company or any Subsidiary that is a Loan Party of its Domestic Subsidiaries to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, in each case pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000interests therein, which are addressed in Section 5.16) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of under the Agent Security Agreements upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations, the Canadian Obligations and/or the Ex-Im Obligations, as applicable, and will take, and cause the other Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries and (orii) 65% (or such greater percentage that, in (1) could not reasonably be expected to cause the case undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, ’s U.S. parent and (y2) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (zcould not reasonably be expected to cause any material adverse tax consequences) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% each of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests its Foreign Subsidiaries entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the such Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereofthereof and any Excluded Assets), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (iPower Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a Loan Party may at its election cause any of its Domestic Subsidiaries, and shall (within 30 days after the formation or acquisition, or determination that a Subsidiary is a Subsidiary, or designation of a Subsidiary as a Subsidiary Borrower, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) Effective Date, or any such Domestic Subsidiary that was an Immaterial designated as a Subsidiary butBorrower, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to (A) become a Loan Party within 20 Business Days by executing, as applicable, a Borrower Joinder Agreement or a Guarantor Joinder Agreement and (B) execute and deliver such amendments, supplements or such later date documents of accession to any Collateral Documents as agreed to by the Administrative Agent deems necessary for such Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in its sole discretion) by executing a Joinder Agreement the Collateral described in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)such Collateral Document with respect to such Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party hereunder Guarantor of the Secured Obligations under the Security Agreement and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity and as a Loan Party under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may . The requirements of this clause (a) shall not be required pursuant to the terms of the Collateral Documents.
(b) be satisfied with respect to Tyson Delaware Holdings, the Borrower LLC, Provemex Holdings, LLC, and each any SPE Subsidiary or to any other Subsidiary (1) that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (subject to any legal or, in the case of any special purpose or limited purpose entity, any contractual restriction preventing or prohibiting it from satisfying such requirement, (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”2) that holds more than 65% is a Subsidiary of the Capital Stock of (x) a Foreign Subsidiary, (y3) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Variable Interest Entity or (4) with respect to which the Administrative Agent determines that the cost of satisfaction of such requirement with respect thereto exceeds the value afforded thereby (and any such Subsidiary that does not so satisfy the terms of this Section 5.14(a) shall not become a Loan Party to be subject at all times to and/or a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph Party hereunder).
(b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary Subject to the extent a pledge of such Equity Interests limitations set forth in favor of the Agent or to secure any debt securities of Security Agreement, the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party Company will, and will cause each Subsidiary that is a Loan Party to, execute any and deliverall further documents, or cause to be executed and delivered, to the Agent such documentsfinancing statements, agreements and instruments, and will take or cause to be taken all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which that may be required by law under any applicable law, or which that the Administrative Agent mayor the Required Lenders may reasonably request, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents Documents, and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Tyson Foods Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Closing Date in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Intercreditor Agreement or the Security Agreement (including, if applicable, the holders of the 2028 Debentures), in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article IV of the Original Credit Agreement, as applicable (including legal opinions, Title Insurance Policies, certificates the delivery of the items contemplated by paragraph (m) thereof to the extent the Borrower has been unable to deliver such items by the Closing Date after having used its commercially reasonable efforts to obtain and corporate and organizational documentsdeliver such items by the Closing Date)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the U.S. that are full-line Neiman Marcus retail stores owned in fee by a Loan Party or leased by a Loan Party pursuant to a financeable lease or other real property owned in fee by a Loan Party having a fair market value at the time of the Loan Documents acquisition thereof of $5,000,000 or more (provided that the cost of perfecting such Lien is not unreasonable in relation to the contrarybenefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the Borrower; provided further that the Borrower shall use commercially reasonable efforts to ensure that all leases entered into after the Closing Date by the Borrower and the other Loan Parties will be financeable leases).
(g) Notwithstanding anything to the contrary contained herein, the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become either a Loan Party Guarantor or, if its Accounts are to be included in the Borrowing Base, a Borrower hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the such Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require Effective as of the Borrower or any Subsidiary to grant a security interest in date that Intermediate Holdco becomes the owner of 100% of the issued and outstanding Equity Interests of the Company (i) any Intermediate Holdco shall execute a non-recourse pledge agreement in form and substance substantially similar to the Parent Pledge Agreement, or in another form reasonably satisfactory to the Administrative Agent (the “Intermediate Holdco Pledge Agreement”), pursuant to which, among other things, 100% of the issued and outstanding Equity Interests of the Company shall be subject to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or to secure any debt securities Administrative Agent, for the benefit of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with Administrative Agent and the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawSecured Parties, rule or regulation or (ii) the Parent shall execute an amendment of the Parent Pledge Agreement in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which, among other things, 100% of the issued and outstanding Equity Interests of any Unrestricted SubsidiaryIntermediate Holdco shall be subject to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, and (iii) the Loan Parties shall deliver a legal opinion in form and substance reasonably satisfactory to the Administrative Agent in connection therewith. Upon execution and delivery of the Intermediate Holdco Pledge Agreement, Intermediate Holdco shall automatically become a Guarantor hereunder (only to the extent of its non-recourse obligations under the Intermediate Holdco Pledge Agreement).
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the execution, delivery, filing and recording of recording, and maintenance of, as applicable, financing NAI-1500544456v14 85 statements, fixture filingsDeposit Account Control Agreements, mortgagesGovernment Receivables Account Agreements, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this Section, all at the expense of the Loan Parties.
(ef) If, at any time and from time With respect to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets Parties, if any (each a “Specified Person”), if, as of the end of the most recently ended any fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b), it is determined that (i) the consolidated total assets of all such Specified Persons on the last day of such fiscal quarter exceeds 2.5% of the Borrower consolidated total assets of the Company and the Restricted its Subsidiaries or more than 7.5% (ii) the consolidated revenues of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters all such Specified Persons as of the end last day of such fiscal quarter for the four fiscal quarter period then ending exceeds 2.5% of the most recently ended consolidated total revenues of the Company and its Subsidiaries for such four fiscal quarter of the Borrowerperiod, then the Borrower Borrowers shall, not later than 45 days after the date by which financial statements for and shall cause their Subsidiaries to, cause such quarter are required number of such Specified Persons to be delivered become Loan Parties pursuant to this Agreement Section 5.12 as is necessary to cause the matters described in clauses (or such later date as agreed i) and (ii) above to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases cease to be truetrue after giving pro forma effect to any such Specified Person’s becoming a Loan Party.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Opko Health, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party Holdings shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date Effective Date, and (ii) any such each Domestic Subsidiary that was an Immaterial which is not a Material Domestic Subsidiary buton the Effective Date but which qualifies as a Material Domestic Subsidiary after the Effective Date, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”)) within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) of such formation, acquisition or qualification, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsWithout limiting the generality of the foregoing, the Borrower and each Subsidiary that is a Loan Party Holdings will cause (i) 100% the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Pledge Subsidiary directly owned by the Borrower Holdings or any Subsidiary that is a other Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent pursuant and the Lenders, to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or such other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Foreign Subsidiary shall be required hereunder (i) (A) until the date that is sixty (60) days immediately following the Effective Date (or such later date as may be agreed upon by the Administrative Agent) in the case of Material Foreign Subsidiaries in existence on the Effective Date and (B) within sixty (60) days (or such later date as may be agreed upon by the Administrative Agent) in the case of a Material Foreign Subsidiary formed or acquired, or a Foreign Subsidiary otherwise qualifying as a Material Foreign Subsidiary, after the Effective Date and (ii) to the extent a pledge of such Equity Interests the Administrative Agent or its counsel determines that, in favor light of the Agent or to secure any debt securities cost and expense associated therewith, such pledge would not provide material credit support for the benefit of the Borrower or any Subsidiary that would be entitled Secured Parties pursuant to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawlegally valid, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarybinding and enforceable pledge agreements.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instrumentsinstruments (including, without limitation, the making of commercially reasonably efforts in respect of deposit account control agreements and securities account control agreements), and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000other than Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfEach Loan Party will use commercially reasonable efforts to obtain a Processor Control Agreement with respect to each Credit Card Processor party to a credit card processing agreement acquired by any Loan Party in connection with the consummation of any Permitted Acquisition, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 within sixty (60) days after the date by which financial statements for consummation of such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be truePermitted Acquisition.
(f) Notwithstanding On or prior to the Effective Date, each Loan Party shall deliver to the Administrative Agent executed signature pages and exhibits to Confirmatory Grants of Security Interest with respect to its patents, trademarks and copyrights to be held in escrow by the Administrative Agent until the occurrence of the IP Collateral Trigger Date. Upon the occurrence of the IP Collateral Trigger Date, each Loan Party acknowledges and agrees that (i) all signature pages, exhibits, documents, instruments and other deliveries provided to the Administrative Agent by such Loan Party to evidence a first priority security interest of the Administrative Agent in such Loan Party’s patents, trademarks, and copyrights, shall be automatically and irrevocably released, (ii) the Administrative Agent shall be authorized to (A) date any provision such items the date of the IP Collateral Trigger Date, (B) attach the executed signature pages of such Loan Party thereto, and (C) make all filings and take any other actions contemplated thereby in connection with creating and perfecting the Administrative Agent’s Lien on the patents, trademarks and copyrights of such Loan Party, and (iii) it shall promptly execute and deliver to the Administrative Agent a reaffirmation agreement, in form and substance satisfactory to the Administrative Agent, that reaffirms its obligations under the Loan Documents (including, without limitation, such Loan Party’s grant to the contrary, the Loan Parties shall not be required to grant Administrative Agent of a first priority security interest in any personal property all of such Loan Party’s patents, trademarks and copyrights).
(g) If an agreement with respect to a type joint venture (that is not a Subsidiary) entered into by a Loan Party otherwise permitted hereunder contains customary restrictions on the granting of Liens on its assets or Equity Interests of such joint venture, no Lien need be provided to the Administrative Agent to the extent that such Lien would not constitute Pledged Collateral or Article 9 Collateral (each as defined in be permitted by the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 terms of the Guarantee and Collateral Agreementjoint venture agreements.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, the Borrower and except as otherwise permitted hereunder (i) cause each Subsidiary that is of the Company (other than a Foreign Subsidiary and other than an Excluded Subsidiary or a Designated Subsidiary) to become or remain a Loan Party shall and a Guarantor of all of the Obligations and (ii) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesa Foreign Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D B hereto (the “"Joinder Agreement”"). Upon execution and delivery thereof, each such Person (i) shall automatically become a Domestic Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Ex-Im Revolving Lender in any property of such Loan Party which constitutes Collateral (other than Equipment and Real Property).
(b) Each Canadian Loan Party now or hereafter formed or acquired shall guaranty the Foreign Obligations pursuant to a Joinder Agreement or a separate Loan Guaranty and grant Liens to the Canadian Agent, for the benefit of the Canadian Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofCanadian Revolving Lenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Canadian Loan Party which constitutes Collateral, on excluding Real Property. During the European Availability Period, each European Loan Party now or hereafter formed or acquired shall guaranty the Foreign Obligations pursuant to a Joinder Agreement or a separate Loan Guaranty and grant Liens to the European Agent, for the benefit of the European Agent and the European Revolving Lenders, in any property of such terms as may European Loan Party which constitutes Collateral, excluding Real Property.
(c) Holdings will cause 100% of the issued and outstanding Equity Interests of the Company to be required subject at all times to a first priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, each pursuant to the terms and conditions of the Collateral Documents.
(b) Holdings, Loan Documents or other security documents as the Administrative Agent shall reasonably request. Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, and all other Subsidiaries in the case of Equity Interests owned by (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% the Canadian Borrower and each of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or its Subsidiaries (B) any Domestic Subsidiary all or substantially all the assets European Borrower and each of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiarytheir respective Subsidiaries) and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the Effective Date, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's United States parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower Company or any Subsidiary that is a Loan Party of its Domestic Subsidiaries to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, in each case pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000interests therein, which are addressed in Section 5.16) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of under the Agent Security Agreements upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations, the Canadian Obligations, the European Obligations and/or the Ex-Im Obligations, as applicable, and will take, and cause the other Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Closing Date in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Intercreditor Agreement or the Security Agreement (including, if applicable, the holders of the 2028 Debentures), in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however that this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article IV of the Original Credit Agreement, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the U.S. that is full-line Neiman Marcus retail stores owned in fee by a Loan Party or leased by a Loan Party pursuant to a financeable lease or other real property owned in fee by a Loan Party having a fair market value at the time of the Loan Documents acquisition thereof of $5,000,000 or more (provided that the cost of perfecting such Lien is not unreasonable in relation to the contrarybenefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the Borrower; provided, further, that the Borrower shall use commercially reasonable efforts to ensure that all leases entered into after the Closing Date by the Borrower and the other Loan Parties will be financeable leases).
(g) Notwithstanding anything to the contrary contained herein, the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including, at the terms Administrative Agent’s discretion, any parcel of real property located in the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (orother than an Excluded Subsidiary) and (ii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes to be treated as a deemed dividend to such foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any such Domestic Subsidiary, a “DRE”material adverse tax consequences) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign foreign Subsidiary (other than an Excluded Subsidiary) directly owned by the Borrower or any domestic Subsidiary that is a Loan Party (other than an Excluded Subsidiary) to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than an Excluded Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. Notwithstanding the foregoing, at any time after an Event of Default has occurred, each Loan Party will, upon the request of the Administrative Agent, cause each Foreign Subsidiary (other than an Excluded Subsidiary) to become a Loan Party and a Loan Guarantor and to grant Liens to the Administrative Agent on its assets and have the balance of its stock pledged to the Administrative Agent.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including including, at the Administrative Agent’s discretion, any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Security Agreement upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (A. H. Belo CORP)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party Holdings shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date Effective Date, and (ii) any such each Domestic Subsidiary that was an Immaterial which is not a Material Domestic Subsidiary buton the Effective Date but which qualifies as a Material Domestic Subsidiary after the Effective Date, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”)) within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) of such formation, acquisition or qualification, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsWithout limiting the generality of the foregoing, the Borrower and each Subsidiary that is a Loan Party Holdings will cause (i) 100% the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Pledge Subsidiary directly owned by the Borrower Holdings or any Subsidiary that is a other Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent pursuant and the Lenders, to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or such other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Foreign Subsidiary shall be required hereunder in the case of a Material Foreign Subsidiary formed or acquired, or a Foreign Subsidiary otherwise qualifying as a Material Foreign Subsidiary, after the Effective Date and (ii) to the extent a pledge of such Equity Interests the Administrative Agent or its counsel determines that, in favor light of the Agent or to secure any debt securities cost and expense associated therewith, such pledge would not provide material credit support for the benefit of the Borrower or any Subsidiary that would be entitled Secured Parties pursuant to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawlegally valid, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarybinding and enforceable pledge agreements.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instrumentsinstruments (including, without limitation, the making of commercially reasonably efforts in respect of deposit account control agreements and securities account control agreements), and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)4.01), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if [Intentionally Omitted].
(e) If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000other than Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph paragraphs (b), (c) and (d) of this Section, all at the expense of the Loan Parties.
(ef) IfEach Loan Party will use commercially reasonable efforts to obtain a Processor Control Agreement with respect to each Credit Card Processor party to a credit card processing agreement acquired by any Loan Party in connection with the consummation of any Permitted Acquisition, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 within sixty (60) days after the date consummation of such Permitted Acquisition.
(g) If an agreement with respect to a joint venture (that is not a Subsidiary) entered into by which financial statements for a Loan Party otherwise permitted hereunder contains customary restrictions on the granting of Liens on its assets or Equity Interests of such quarter are required joint venture, no Lien need be provided to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding the extent that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that Lien would not be permitted by the foregoing condition ceases to be true.
(f) Notwithstanding any provision terms of the Loan Documents to the contrary, the Loan Parties shall not joint venture agreements (unless any such restriction would be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) rendered ineffective pursuant to Section 3.01 Sections 9-406, 9-407, 9-408, 9-409 or Section 4.01 other applicable provisions of the Guarantee and Collateral AgreementUCC of any relevant jurisdiction or any other applicable law).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Loan Parties will, Holdingsunless the Required Lenders otherwise consent, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic their Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic domestic Subsidiaries to be subject at all times to a first priority, perfected Lien (or, subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement(as applicable).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Required Lenders otherwise consent, except as otherwise permitted hereunder (i) cause each Subsidiary of the Borrower and each Subsidiary that is (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Borrower (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Closing Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D EXHIBIT F hereto (the “Joinder Agreement”"JOINDER AGREEMENT"), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty and enter into a Security Agreement granting to the Agent, for the benefit of the Lenders, a first priority security interest in all of its personal property. Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(iib) will simultaneously therewith or as soon as practicable thereafter Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders Lenders, pursuant to such documents as the Agent may reasonably deem necessary and each other Secured Party at deliver such time party property, documents, and instruments as the Agent may request to or benefiting from perfect the Guarantee and Collateral Agreement to Liens of the extent required by the terms thereof, Agent in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party which constitutes Collateral, on such terms and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as may applicable). Notwithstanding the foregoing, the Borrower shall not be required pursuant to grant mortgages to the terms of Agent and the Collateral DocumentsLenders on their real Property (other than those granted on the Closing Date) so long as the Availability exceeds $25,000,000. If, at any time, the Availability falls below $25,000,000, the Agent, in the Agent's sole and absolute discretion, shall have the right to require perfected, first priority mortgage liens on the Borrower's real Property at the Borrower's sole cost and expense.
(bc) Holdings, the Borrower and each Subsidiary that is a Loan Party The Parent will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided. Upon the occurrence and at all times during the existence of an Event of Default under this Agreement, howeverthe Borrower shall, this paragraph upon the request of Agent, in its sole and absolute discretion, cause (bi) shall 100% of the issued and outstanding Capital Stock of each of its Domestic Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the date hereof, (1) could not require reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) in each first-tier Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary to grant be subject at all times to a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or pursuant to secure any debt securities the terms and conditions of the Borrower Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarydocuments.
(cd) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Borrower's Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent and the Required Lenders may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawthe provisions of Section 8.05, Holdingsany Credit Party may from time to time create or acquire new Subsidiaries (including Intermediate Parents), the Borrower and each Subsidiary that is a Loan Party shall cause including in connection with Permitted Acquisitions or otherwise, provided that:
(i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after within 60 days following the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days date (or such later date as agreed to by the Administrative Agent may reasonably agree) of (A) the creation or direct or indirect acquisition of any new Subsidiary (including Intermediate Parents) that is a Domestic Subsidiary (other than any Excluded Subsidiary) (including any Subsidiary that is a Domestic Subsidiary ceasing to be an Excluded Subsidiary) and (B) in Borrower’s sole discretion, the designation of any Excluded Subsidiary as a Subsidiary Guarantor, then in each case of clauses (A) and (B), Holdings or the Borrower, as applicable, will cause such Subsidiary to (i) execute and deliver to the Administrative Agent (1) a joinder to this Agreement substantially in the form attached as Exhibit F, pursuant to which such new Subsidiary shall become a party hereto and shall guarantee the payment in full of the Secured Obligations under this Agreement and the other Credit Documents and (2) a joinder to the Security Agreement, pursuant to which such new Subsidiary shall become a party thereto and shall subject to the terms of the Security Agreement grant to the Administrative Agent a first priority Lien upon and security interest in its sole discretionassets that constitute Collateral (other than Excluded Assets) as security for its obligations under the Guaranty, subject only to Permitted Liens, and pursuant to which all of the Capital Stock (other than Capital Stock that qualifies as Disqualified Capital Stock or Excluded Assets) of (and, to the extent required by executing a Joinder Agreement the Security Agreement, owned by) such new Subsidiary shall be pledged to the Administrative Agent and (ii) take such actions as may be required by the terms hereof or of the applicable Security Documents to grant and perfect Liens to the Administrative Agent, for the benefit of itself and the Lenders and each other Secured Party in substantially any property (subject to the form limitations set forth herein and in the other Credit Documents) of such Credit Party which constitutes Collateral, on such terms as Exhibit D hereto (are required pursuant to the “Joinder Agreement”). Upon terms of the Security Documents, and upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor or other Guarantor, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and Credit Documents; and
(ii) the applicable Credit Party will simultaneously therewith or as soon as practicable thereafter grant Liens deliver any such other documents, instruments, opinions, certificates (including perfection certificates), financing and continuation statements and agreements, in form and substance reasonably satisfactory to the Administrative Agent, for as the benefit Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth a perfected first priority security interest in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required being pledged pursuant to the terms of the Collateral Documentsdocuments described above.
(b) HoldingsAt Borrower’s cost and expense, upon reasonable request of Administrative Agent, duly execute and deliver or cause to be duly executed and delivered, to Administrative Agent such further instruments, documents, agreements, certificates and financing and continuation statements, and do and cause to be done such further acts that may be reasonably necessary in the Borrower reasonable opinion of Administrative Agent to grant, perfect and each Subsidiary that is a Loan Party will cause (i) 100% maintain the validity, effectiveness and priority of any of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned Liens required by the Borrower or any Subsidiary that is a Loan Party to be subject at Credit Documents in accordance with all times to a first priority perfected Lien in favor applicable Requirements of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLaw.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary neither Holdings nor any of its Subsidiaries shall take any action or consummate any transaction that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to would have the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including effect of changing the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries owner of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions Capital Stock of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after Intermediate Parent unless the Second Restatement Date (other than assets constituting Collateral applicable requirements under the Guarantee and Collateral Agreement that become subject Credit Documents are satisfied immediately upon taking such action or the consummation of such transaction. Notwithstanding anything to the contrary in this Section 6.09 or any Security Document, no Credit Party shall be required to (x) grant any Lien in favor of the Agent upon acquisition thereof)on, the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected take any other action with respect to a Lien securing the Obligations on, any Excluded Assets and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (cy) of this Section, all at the expense of the Loan Parties.
(e) If, at take any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are Excluded Perfection Action. All Liens required to be delivered granted or perfected pursuant to this Agreement (or such later date as agreed Section 6.09 shall be subject to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined exceptions and limitations consistent with those set forth in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementSecurity Documents.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the Closing Date (and is not an Excluded Subsidiary) or that ceases to be an Excluded Subsidiary after the Closing Date in accordance with the terms of this Agreement within sixty (ii60) any such Domestic Subsidiary that was an Immaterial Subsidiary butdays (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, security agreements, the “Joinder Agreement”)Mortgage and other documents) that are required under the Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (Security Agreement. With respect to any Excluded Subsidiary formed or any successor thereto) or any other law, rule or regulation or (ii) acquired after the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions date of this Agreement and the other Loan Documents and to ensure perfection and priority Equity Interests of the Liens created or intended to be created which are directly owned by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant pledged to this Agreement (or such later date as agreed to by the Administrative Agent pursuant to the Security Agreement, the applicable Loan Party shall, within sixty (60) days (in its each case, as such time may be extended in the Administrative Agent’s sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to formation or acquisition of such Excluded Subsidiary notify the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAdministrative Agent thereof.
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) Borrower by executing this Agreement through a Joinder Agreement joinder agreement in substantially form and substance reasonably satisfactory to the form set forth as Exhibit D hereto Agent (the “"Joinder Agreement”"). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries to be subject at all times to a first priority, perfected Lien (or, subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B)Loan Documents or other security documents as the Agent shall reasonably request, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg.
Section 1. Section 1.956956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, howeverthat, this paragraph (b) shall not require the Borrower or any Subsidiary to grant if, as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of such a greater percentage than 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary's domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAgent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each other Loan Party and each Subsidiary that is of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesSection 4.01 (as applicable).
(d) Subject to To the limitations set forth or referred to in this Section 5.11extent permitted hereunder, if any material assets (including any owned Loan Party proposes to acquire a fee ownership interest in real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor date of the Agent upon acquisition thereof)this Agreement, the Borrower will, and will notify cause each other Loan Party to, first provide to the Agent and a mortgage or deed of trust granting the Lenders thereofAgent a first priority Lien on such real property, together with environmental audits, mortgage title insurance commitment, real property survey, local counsel opinion(s), and, if requested required by the Agent or the Required LendersAgent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 1 contract
Additional Collateral; Further Assurances. WEST\277974037.8 66
(a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic SubsidiaryHoldcos) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary and Foreign Holdco directly owned by the a Borrower or any Domestic Subsidiary that is a Loan Party (other than any Foreign Holdco) to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Upon a request of the Administrative Agent, howeversubject to applicable Requirements of Law, this paragraph (b) shall each Loan Party will cause its non-Loan Party parent or Subsidiaries, as applicable, including Foreign Subsidiaries and Foreign Holdcos that are not require “controlled foreign corporations” as defined in Section 957 of the Borrower or any Subsidiary Code, to grant a security interest deliver an Obligation Guaranty in (i) any Equity Interests of a Subsidiary form and substance reasonable satisfactory to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Domestic Subsidiary that is (other than a Loan Party Foreign Holdco) to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Meet Group, Inc.)
Additional Collateral; Further Assurances. (a) Subject Unless the Required Lenders otherwise consent and subject to the requirements of applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic wholly owned Subsidiaries (other than excluding any Immaterial foreign Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesand all Excluded Subsidiaries) formed or acquired after the Second Restatement Closing Date and in accordance with the terms of this Agreement to (iii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) Guarantor by executing a Joinder Agreement substantially in substantially the form set forth as of Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party new Guarantor, as the case may be, which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause Cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% each of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or Borrower’s and each Guarantor’s domestic Subsidiaries and (B) Reorganized KACC (provided however that neither this provision nor any Domestic Subsidiary all or substantially all such pledge of Reorganized KACC shall effect, nor shall either be construed as effecting, a pledge of the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% any Subsidiary of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)Reorganized KACC) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) Kaiser Bauxite, and (ii) 65% of the issued and outstanding Equity Interests entitled to vote in (within the meaning of Treas. Reg. Section 1.956-2(c)(2)A) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party Guarantor and (B) Trochus, to be subject at all times to a first priority perfected Lien in favor of the Collateral Agent (second priority so long as the Revolving Loan Facility is in existence) pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, howeverthat, this paragraph with respect to (by) any Subsidiary that is organized outside of the United States, Canada, or Bermuda, and is not a Significant Subsidiary, and (z) Trochus, no Borrower or Guarantor shall not require be required to take any action under the laws of the jurisdiction of organization of such Person to perfect or register the pledge of such shares and that the Borrower or any Subsidiary and the Guarantors shall have until the date that is the 30th day after the Closing Date to grant a security interest in perfect the pledge of shares of (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X KACL under the Securities Act (laws of Canada or any successor thereto) or any other law, rule or regulation or Ontario and (ii) Trochus under the Equity Interests laws of any Unrestricted SubsidiaryBermuda.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute Execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, and will take or cause to be taken such further actions (including as the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesArticle IV (as applicable).
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party Guarantor after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee Security and Collateral Pledge Agreement that become subject to the a Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Agent Agents and the Lenders thereof, and, if requested by the any Agent or the Required LendersLenders after consultation with the Borrower, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and or cause the Loan Parties that are Subsidiaries Guarantors to take, such actions as shall be necessary or reasonably requested by the Agent any Agent, to grant and perfect such LiensLien, including actions described in paragraph (cSection 5.11(c) and, in the case of this Sectionacquired owned real Property, a Mortgage, all at the expense of the Loan PartiesBorrower.
(e) IfIf the Borrower or any Guarantor delivers to the “Administrative Agent” or the “Lenders” under, at and as defined in, the Revolving Loan Documents, any time and from time environmental reports, surveys, documentation regarding flood insurance, title insurance policies or commitments, appraisals, opinions of local counsel, UCC fixture financing statements, or other documentation pursuant to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as terms of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries Revolving Loan Documents with respect to any real Property (i) listed on Schedule 4.01(e) or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by (ii) with respect to which financial statements for such quarter are required to be a mortgage has been delivered pursuant to this Agreement (Section 5.11(c), such Borrower or such later date as agreed Guarantor shall simultaneously deliver to by the Administrative Agent in its sole discretion)comparable documents, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries aremutatis mutandis, individually, Immaterial Subsidiaries) such that for the foregoing condition ceases to be true.
(f) Notwithstanding any provision benefit of the Loan Documents to the contraryAdministrative Agent, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each Agent and/or the Lenders, as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementapplicable.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Kaiser Aluminum Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a wholly-owned Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days 30 days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a wholly-owned Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, Holdings, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a wholly-owned Material Domestic Subsidiary, in each case, within 30 days (iior such later date as the Administrative Agent may agree) will simultaneously therewith after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a wholly-owned Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) ), Holdings, the Borrower and each other wholly-owned Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as that is a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic SubsidiaryFSHCO) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in of each Foreign Subsidiary that is a CFC or FSHCO (including any Subsidiary that becomes a CFC or FSHCO after the Effective Date) directly owned by the Borrower or any wholly-owned Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . Notwithstanding any provision set forth in this Agreement to the limitations set forth contrary, in no event shall any Loan Party be required to (A) make any filings or referred take any other action to record or perfect the Administrative Agent’s interest in this Section 5.11, if any material assets intellectual property outside the U.S. or (including B) take any owned real property actions in any non-U.S. jurisdiction or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) that are acquired required by the Borrower laws of any non-U.S. jurisdiction in order to (x) create any security interests in such assets located or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor titled outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent U.S. or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and (y) perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.security interests
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 1 contract
Samples: Credit Agreement (Sailpoint Technologies Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired or that otherwise becomes a Domestic Subsidiary pursuant to Section 5.10 after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the later to occur of (i) the date that is 30 days following the date of such formation or acquisition (or such later date as may be acceptable to the Administrative Agent in its discretion) and (ii) any the earlier of the date of the required delivery of the Compliance Certificate following the date of such Domestic Subsidiary formation or acquisition and the date that was an Immaterial Subsidiary but, as of is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Joinder Agreement in substantially the form set forth attached as Exhibit D hereto (the “Joinder Agreement”)) and a Security Agreement Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents, (ii) will simultaneously therewith take such actions as may be required in accordance with the terms hereof or as soon as practicable thereafter of the applicable Collateral Documents to grant Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement and (iii) with respect to any Material Real Estate Asset owned by each such Person, will comply with the requirements set forth in Section 5.12(d).
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably requestCollateral Documents; provided, howeverthat, this paragraph (b) shall not require in no event will the Borrower or any Subsidiary Guarantor be required to grant a security interest in (i) pledge or perfect more than 65.0% of the voting Capital Stock of any Equity Interests of a first-tier Foreign Subsidiary to the extent a pledge or Disregarded Domestic Subsidiary of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, subject to the Intercreditor Agreement, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 9.03(a) .
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets any asset constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become becomes subject to the Lien in favor of the Administrative Agent upon acquisition thereof)) or if a Real Estate Asset owned as of the Closing Date becomes a Material Real Estate Asset, the Borrower will notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent Administrative Agent, within 90 days of such request (or such longer period as may be acceptable to the Required Lenders, Administrative Agent) the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection and Section 5.14 as it relates to Material Real Estate Assets, all at the expense of the Borrower in accordance with Section 9.03(a). The Loan PartiesParties shall within 90 days following a request by the Administrative Agent (or such longer period as the Administrative Agent may agree in its sole discretion) cause the Mortgages on each such Material Real Estate Asset acquired by any Loan Party after the Closing Date to be executed, delivered and recorded and in connection therewith deliver corresponding UCC fixture filings, flood hazard determination forms, evidence of flood insurance (to the extent each such Material Real Estate Asset is a Flood Hazard Property), fully paid title insurance policies (including any endorsements thereto), surveys, local counsel opinions and other documentation that the Administrative Agent shall reasonably require, each in a form reasonably satisfactory to the Administrative Agent.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at the Borrower shall cause such Domestic Subsidiary to take all actions required by this Section 5.12 (within the time periods specified herein) as if such Domestic Subsidiary were then formed or acquired. Notwithstanding anything to the contrary in this Section 5.12 or any time and from time other Collateral Document, (a) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to time after which (i) the Second Restatement Datecost, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in burden, difficulty or consequence of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the aggregate more than 7.5% of Total Assets as benefit to the Lenders of the end of the most recently ended fiscal quarter of security afforded thereby as reasonably determined by the Borrower and the Restricted Subsidiaries Administrative Agent or more than 7.5% (ii) the granting of Consolidated EBITDA a Lien on such asset would violate any enforceable anti-assignment provisions of contracts or applicable law or, in the case of assets consisting of licenses, agreements or similar contracts, to the extent the granting of such Lien therein would violate the terms of such license, agreement or similar contract relating to such asset (in each case, after giving effect to the applicable anti-assignment provisions of the Borrower and UCC or other applicable law) or would trigger the Restricted Subsidiaries for termination of any contract pursuant to any “change of control” or similar provision, (b) no Lien on Real Estate Assets shall be required except in respect of Material Real Estate Assets (provided that if a mortgage tax will be owed on the period of four consecutive fiscal quarters as entire amount of the end Secured Obligations evidenced hereby, then, to the extent permitted by, and in accordance with, applicable law, the amount of such mortgage tax shall be calculated based on the lesser of (x) the amount of the most recently ended fiscal quarter Secured Obligations allocated to the applicable Mortgaged Property and (y) the estimated fair market value of the Mortgaged Property at the time the Mortgage is entered into and determined in a manner reasonably acceptable to Administrative Agent and the Borrower, then which in the Borrower shallcase of clause (y) will result in a limitation of the Secured Obligations secured by the Mortgage to such amount), not later than 45 days after the date by which financial statements for such quarter are (c) no actions shall be required to be delivered taken in order to create, grant or perfect any security interest in any assets located outside of the U.S. and no foreign law security or pledge agreements, foreign law mortgages or deeds or foreign intellectual property filings or searches shall be required, (d) Liens required to be granted or perfected pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to Section 5.12 shall be true.
(f) Notwithstanding any provision of the Loan Documents subject to the contraryIntercreditor Agreement and to exceptions and limitations consistent with those set forth in the Collateral Documents, (e) except as provided in the Collateral Documents, the Loan Parties shall not be required to seek or obtain any landlord lien waiver, estoppel, warehousemen waiver or other collateral access or similar letter or agreement, (f) no Loan Party shall be required to (i) grant or take any other action with respect to a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee Pledge and Collateral Security Agreement) pursuant or (ii) take any action with respect to Section 3.01 perfection of any security interest in (A) assets requiring perfection through control agreements or Section 4.01 other control arrangements (other than control of promissory notes, pledged Capital Stock, deposit accounts and securities accounts as provided in this Agreement and the Pledge and Security Agreement and filing of UCC-1 financing statements) or (B) any equity interest in any Immaterial Subsidiary (unless perfection of a security interest in such equity interests may be achieved by filing of financing statements under the UCC) and (g) so long as the Holdco Notes or any Holdco Refinancing Indebtedness remains outstanding, Holdings shall not be required grant or take any other action with respect to a security interest in any assets of Holdings (including the Capital Stock of the Guarantee and Collateral AgreementBorrower); provided that within 90 days after the Holdco Notes or Holdco Refinancing Indebtedness, as the case may be, ceasing to remain outstanding, Holdings shall take such actions with respect to its assets.
Appears in 1 contract
Samples: First Lien Term Loan Agreement (Interline Brands, Inc./De)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with With respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having fixtures located on owned real property, in each case with a purchase price or a fair market value of at least $5,000,0001,000,000, in which either Borrower, JCSA, a Domestic Subsidiary of JCI, any Subsidiary of DCJ, or any Subsidiary of JCSA acquires ownership rights at any time after the Closing Date, promptly grant to the Collateral Agent, for the benefit of the Lenders, a Lien of record on all such owned real property and fixtures, upon terms reasonably satisfactory in form and substance to the Collateral Agent and in accordance with any applicable requirements of any Governmental Authority (including any appraisals of such property under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 which the Collateral Agent reasonably deems to be required by law), provided that (i) are acquired nothing in this Section 5.11(a) shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Security Documents which would attach or be perfected pursuant to the terms thereof without action by either Borrower, any of its Subsidiaries, JCSA, any of its Subsidiaries, or any other Person and (ii) no such Lien shall be required to be granted as contemplated by this Section 5.11(a) on any owned real property or fixtures the acquisition of which is financed, or is to be financed within any time period permitted by Section 6.01, until such Indebtedness is repaid in full (and not refinanced as permitted by Section 6.01) or, as the case may be, the Borrowers or JCSA determine not to proceed with such financing or refinancing. In connection with any such grant to the Collateral Agent, for the benefit of the Lenders, of a Lien of record on any such real property in accordance with this Section 5.11, the applicable Borrower, JCSA or such Subsidiary shall deliver or cause to be delivered to the Collateral Agent any surveys, title insurance policies, environmental reports and other documents in connection with such grant of such Lien obtained by it in connection with the acquisition of such ownership rights in such real property or as the Collateral Agent shall reasonably request (in light of the value of such real property and the cost and availability of such surveys, title insurance policies, environmental reports and other documents and whether the delivery of such surveys, title insurance policies, environmental reports and other documents would be customary in connection with such grant of such Lien in similar circumstances).
(b) With respect to any Person that, subsequent to the Closing Date, becomes (i) a Domestic Subsidiary of Parent, (ii) a Foreign Subsidiary Holdco or (iii) a Subsidiary of DCJ or JCSA, promptly upon the request of the Administrative Agent: (x) execute and deliver to the Administrative Agent, for the benefit of the Secured Parties, a new pledge agreement or a supplement to the Pledge Agreement, the Mexican Pledge Agreement and/or the Mexican Security Agreement, as the case may be, as the Administrative Agent shall reasonably deem necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on the Capital Stock of such Subsidiary which, with respect to any Domestic Subsidiary, is owned by Parent or any of its Subsidiaries or, with respect to any Subsidiary of DCJ or JCSA, owned by DCJ, JCSA or any of their respective Subsidiaries, (y) deliver to the Collateral Agent the certificates (if any) representing such Capital Stock, together with undated stock powers
(A) to become a party to the applicable Security Documents and Guarantee Agreements, in each case pursuant to documentation which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably deemed by the Borrower Administrative Agent to be necessary or reasonably advisable to cause the Lien created by the applicable Security Documents to be duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent.
(c) With respect to any Person that, subsequent to the Closing Date, becomes a Foreign Subsidiary of, and which has Voting Stock which is owned directly by, (i) JCI or (ii) a Domestic Subsidiary of Parent, promptly upon the request of the Administrative Agent: (A) JCI or such Domestic Subsidiary shall execute and deliver to the Administrative Agent a new Pledge Agreement and/or a new Mexican Pledge Agreement or a supplement to the Pledge Agreement, the Mexican Pledge Agreement and/or the Mexican Security Agreement, as the case may be, as the Administrative Agent shall reasonably deem necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on the Capital Stock of such Foreign Subsidiary which is owned directly by JCI or any such Domestic Subsidiary of Parent (provided that in no event shall more than 65% of the Voting Stock of any such Foreign Subsidiary be required to be so pledged) and (ii) to the extent reasonably deemed advisable by the Administrative Agent to perfect such security interest, deliver to the Administrative Agent certificates (if any) representing such Voting Stock, together with undated stock powers executed and delivered in blank or, with respect to certificates representing Capital Stock of a Foreign Subsidiary that is a Loan Party after the Second Restatement Date Mexican Subsidiary, duly endorsed "in property" (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien en propiedad) in favor of the Agent upon acquisition thereofTrustee, or duly endorsed "in pledge" (en prenda), as applicable, in any case, by a duly authorized officer of JCI or such Domestic Subsidiary of Parent, as the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiescase may be.
(ed) IfNotwithstanding anything to the contrary contained herein, at any time no Subsidiary shall be required to comply with the provisions of this Section 5.11 until such date as either (i) the consolidated gross revenues of such Subsidiary and from time to time after the Second Restatement Date, Domestic Restricted its Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of for the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the completed period of four consecutive fiscal quarters as or (ii) the consolidated assets of the end of the most recently ended fiscal quarter of the Borrowersuch Subsidiary and its Subsidiaries, then the Borrower shall, not later than 45 days exceed $2,500,000 (it being understood that any such Subsidiary which achieves such assets or revenues after the date hereof shall be deemed, for purposes of this Section 5.11 only, to have been newly acquired by Parent or the applicable Borrower on the date upon which financial statements for such quarter assets or revenues, as the case may be, are required to achieved).
(e) No later than thirty (30) days following the Closing Date (which period of time may be delivered pursuant to this Agreement (or such later date as agreed to extended by the Administrative Agent in its sole reasonable discretion), Parent agrees (i) to cause one Distribuidora Venus, S.A. de C.V. to transfer the cosmetics manufacturing plant located in Xxxxxxxx Xx. 00, Xxxxxxxxx, Xxxxxx de Mexico (the "Manufacturing Plant") to BankBoston S.A., Institucion de Banca Multiple, or more such Domestic Restricted Subsidiaries another financial or trust institution reasonably acceptable to become additional Loan Parties Parent and the Administrative Agent, in trust pursuant to an irrevocable management trust agreement governed by the laws of Mexico (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesthe "Management Trust Agreement") such that in form and substance reasonably acceptable to Parent and the foregoing condition ceases Administrative Agent and (ii) to do or cause to be true.
done all such other acts, and to execute and deliver such documents and take such other action as the Administrative Agent deems reasonably necessary or advisable to perfect the transfer and assignment to the Trustee (facting in such capacity under the Mexican Security Agreement) Notwithstanding of any provision and all rights of Distribuidora Venus, S.A. de C.V., in its capacity as settlor and beneficiary under the Management Trust Agreement (including, without limitation, its reversion rights (derechos de reversion) thereunder) for the purposes set forth in the Mexican Security Agreement, in each case, upon terms reasonably satisfactory in form and substance to the Administrative Agent and in accordance with any applicable requirements of any Governmental Authority, provided that nothing in this Section 5.11(e) shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Loan Security Documents which would attach or be perfected pursuant to the contraryterms thereof without action by Parent, either Borrower or any of their respective Subsidiaries, or any other Person, as the case may be; provided, however, that in the event that any recordation fees and/or taxes due and payable in accordance with applicable law by Distribuidora Venus, S.A. de C.V. or any Loan Party as a result of the creation of the Management Trust Agreement or any of the actions undertaken pursuant to item (ii) above materially exceed the sum of any recordation fees and/or taxes that have been paid by any Loan Party in connection with real estate transferred directly to the Trustee pursuant to the Mexican Security Agreement on or about the Closing Date, the Loan Parties shall not be required hereby agree to work together in good faith with the Administrative Agent to devise and implement a reasonable alternative structure with respect to the Manufacturing Plant to grant to the Collateral Agent a security interest in any personal property first priority Lien for the benefit of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined the Secured Parties in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementManufacturing Plant.
Appears in 1 contract
Samples: Credit Agreement (Dirsamex Sa De Cv)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrower will, Holdings, the Borrower and will cause each Material U.S. Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ean Excluded Subsidiary) of this Section 5.11)to, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have cause all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and its personal property constituting Collateral (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (but subject to the limitations with respect to Equity Interests set forth exceptions expressly contained in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien Liens in favor of the Administrative Agent pursuant for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Loan Documents Collateral Documents, subject in any case to Liens permitted by Section 6.02. The requirements in this Section 5.10(a) shall be satisfied within forty-five (45) days (or other security documents such longer time as the Administrative Agent shall reasonably request; provided, however, this paragraph (bmay agree) shall not require after the Borrower acquires or forms any Material U.S. Subsidiary (other than an Excluded Subsidiary) or any Subsidiary becomes a Material U.S. Subsidiary. In connection with the requirements of the two preceding sentences, and in each case as the Administrative Agent may reasonably request, the Borrower will use commercially reasonable efforts to grant deliver to the Administrative Agent, within such forty-five (45) days (or such longer time as the Administrative Agent may agree), fully executed pledging and collateral 4832-2498-4973 documentation and filings as may be required under applicable foreign law to provide the Administrative Agent with a perfected, first priority security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor 65% of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any voting capital stock and other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the voting Equity Interests of any Unrestricted SubsidiaryMaterial Foreign Subsidiaries, along with favorable opinions of foreign counsel regarding such documentation and filings, in form and substance reasonably satisfactory to the Administrative Agent; provided that the Borrower shall not be required to take such steps to the extent (i) such pledge is prohibited under applicable foreign law or the organizational documents of such Material Foreign Subsidiary (but only if such prohibition in organizational documents cannot be removed through the commercially reasonable efforts of the Borrower), (ii) such pledge requires any governmental or third party consent (not including consents from any Affiliates of the Borrower), (iii) such pledge would cause material adverse tax (including foreign tax) consequences to the Borrower or its Subsidiaries, or (iv) the cost of pledging, perfecting or maintaining such pledge would exceed the practical benefits to the Lenders to be afforded thereby (as determined by the Administrative Agent in its reasonable judgment).
(cb) Without limiting the foregoing, each Loan Party the Borrower will, and will cause each applicable Material U.S. Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law this Agreement, the terms of the Collateral Documents or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the reasonable expense of the Loan PartiesBorrower.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereofClosing Date (and is not an Excluded Subsidiary) or that ceases to be an Excluded Subsidiary after the date hereofClosing Date in accordance with the terms of this Agreement within sixty (ii60) any such Domestic Subsidiary that was an Immaterial Subsidiary butdays (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, and other documents) that are required under the “Joinder Agreement”)Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other applicable Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (applicable Security Agreement. With respect to any Excluded Subsidiary formed or any successor thereto) or any other law, rule or regulation or (ii) acquired after the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions date of this Agreement and the other Loan Documents and to ensure perfection and priority Equity Interests of the Liens created or intended to be created which are directly owned by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject required to be pledged to the Lien Administrative Agent pursuant to the applicable Security Agreement, the applicable Loan Party shall, within sixty (60) days (in favor each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Agent upon formation or acquisition thereof), the Borrower will of such Excluded Subsidiary (A) notify the Administrative Agent thereof and (B) deliver to the Lenders thereof, and, Administrative Agent an updated schedule of the pledged Equity Interests to the applicable Security Agreement if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent and confirmation that the original certificates evidencing such pledged Equity Interests (if any) have been delivered to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent Agent, together with appropriate powers executed in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueblank.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingslaw and the limitations expressly set forth in this Agreement and the Collateral Documents, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Closing Date and (iiincluding, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days on or prior to the date that is 30 days following the date of such formation or acquisition (or including, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) (or, in either case, such later date as agreed may be acceptable to by the Administrative Agent Lender in its sole reasonable discretion) ), by executing (i) a Joinder Agreement in substantially the form set forth attached as Exhibit D hereto (the “Joinder Agreement”), (ii) a Security Agreement Joinder Agreement or such other customary supplements or joinders to the other applicable Collateral Documents or new security or collateral documents in the United States, in each case to create Liens over its assets of scope substantially similar to the Liens granted pursuant to the Collateral Documents executed pursuant to Section 5.13, and (iii) the Global Intercompany Note and (iv) such other documentation as the Lender may reasonably request and that is contemplated by the terms hereof (including, for the avoidance of doubt, documents contemplated by clause (c) of this Section 5.10) or of the applicable Collateral Documents, together with such customary closing certificates, evidences of authority and good standing and legal opinions as the Lender may reasonably request. Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or take such actions as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent may be required by the terms thereof, hereof or of the applicable Collateral Documents to grant and perfect Liens to the Lender in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as may be are required pursuant to the terms of the Collateral Documents.
(b) HoldingsSubject to Section 5.13, the Borrower and each Subsidiary that is a other Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more other than 65% of the any Capital Stock of a Foreign Subsidiary and/or (zconstituting an Excluded Asset) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority perfected Lien in favor of the Agent Lender pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; providedof, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary and to the extent a pledge of such Equity Interests in favor of required by, the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Documents.
(c) Without limiting the foregoing, subject to the limitations expressly set forth in this Agreement and the Collateral Documents, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Agent Lender such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))actions, which may be required by law or which the Agent Lender may, from 44 time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 8.03(a).
(d) Subject After any Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the limitations set forth or referred definition thereof, Holdings shall cause such Subsidiary to in take all actions required by this Section 5.11, 5.10 (within the time periods specified herein) as if any material assets (including any owned real property such Subsidiary were then formed or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiesacquired.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a Loan Party may at its election cause any of its Subsidiaries, and shall (within 30 days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its wholly owned Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesSubsidiaries) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was or which ceases to be an Immaterial Subsidiary butafter the Effective Date, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to (A) during the Guarantee Period, become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D G hereto (the “Joinder Agreement”)) and (B) during the Collateral Period, to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) described in the foregoing clause (A) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) described in the foregoing clause (B) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsDuring the Collateral Period, the each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of owned by it in each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure ensure, during the Collateral Period, perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. In addition, during the Collateral Period each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent filings with any governmental recording or registration office in any jurisdiction reasonably required by the Administrative Agent in order to perfect or protect the Liens of the Administrative Agent granted under any Collateral Document in any Intellectual Property.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned other than Foreign Equity Interests, real property estate or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000other Excluded Property) are acquired by the Borrower Borrowers or any Subsidiary that is a Loan Party after during the Second Restatement Date Collateral Period (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent for the benefit of the Secured Parties upon acquisition thereof), the Borrower Borrowers will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will Borrowers, pursuant to the terms and conditions of the Loan Documents, will, subject to paragraph (e) below, cause such assets to be subjected to a first priority, perfected Lien securing in favor of the Obligations Administrative Agent for the benefit of the Secured Parties, subject only to Liens permitted under Section 6.02, pursuant to the terms and conditions of the Loan Documents and will take, and cause the other Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at Notwithstanding any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% other provision of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional any Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents Document to the contrary, Excluded Property will be excluded from the requirements of paragraphs (a) through (d) above. Without limiting the foregoing, (A) no real estate shall be required to be made subject to a mortgage; (B) no Loan Parties Party shall be required to pledge any Foreign Equity Interest; (C) no Loan Party shall be required to pledge any Equity Interest in Brunswick Financial Services Corporation and Brunswick Financial Services Corporation shall not be required to grant become a security interest Loan Party; and (D) no control agreement shall be required to be delivered in respect of any personal property of a type that would not constitute Pledged Collateral deposit account, securities account or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.commodities account. ARTICLE VI
Appears in 1 contract
Samples: Credit Agreement (Brunswick Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (ix) each of its Domestic Subsidiaries Restricted Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement that is a Restricted Subsidiary and a Wholly Owned Subsidiary or (iiy) any such Domestic each Unrestricted Subsidiary that was an Immaterial is redesignated as a Restricted Subsidiary butin accordance with Section 5.15 and that is a Wholly Owned Subsidiary (other than any Excluded Subsidiary), as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, in each case to become a Loan Party (and in the case of a Subsidiary organized under the laws of the U.S., the United Kingdom or The Netherlands, at Insight’s election with the Administrative Agent’s consent (such consent not to be unreasonably withheld), a Borrower) by executing a Joinder Agreement within 20 Business Days sixty (60) days after the date of such formation or acquisition, or redesignation, or if later, the date such later Restricted Subsidiary becomes a Subsidiary (as such date as agreed may be extended from time to time by the Administrative Agent in its sole discretion) ). In connection therewith, the applicable Loan Party shall deliver to the Administrative Agent all documentation and other information reasonably requested by executing a Joinder Agreement the Administrative Agent in substantially writing regarding such Subsidiary as may be required to comply with the form set forth as Exhibit D hereto (applicable “know your customer” rules and regulations, including the “Joinder Agreement”)USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor (or a Borrower, as applicable) hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes CollateralCollateral (which for clarification, on such terms as may be required pursuant will exclude Excluded Assets), subject to the terms of exceptions and limitations in the Collateral Loan Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary[Reserved].
(c) Without limiting the foregoingforegoing but subject to the limitations and restrictions contained in the Loan Documents, each Loan Party will, and will cause each Restricted Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties[Reserved].
(e) IfSubject to any applicable limitations set forth herein or in any other Loan Document, at if any time and from time Wholly Owned Subsidiary ceases to time be an Excluded Subsidiary after the Second Restatement Effective Date, Domestic Restricted Subsidiaries that are not the Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowerwill, then the Borrower shall, not later than 45 within sixty (60) days after the next following date by on which financial statements for such quarter are the Borrower Representative is required to be delivered deliver a Compliance Certificate pursuant to this Agreement Section 5.01(d) (or such later date longer period as may be agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries Subsidiary to become additional a Loan Parties Party (notwithstanding that and in the case of a Subsidiary organized under the laws of the U.S., the United Kingdom or The Netherlands, at Insight’s election with the Administrative Agent’s consent (such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases consent not to be trueunreasonably withheld), a Borrower) and (i) execute a Joinder Agreement and (ii) grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in any property of such Loan Party which constitutes Collateral to the extent not Excluded Assets and subject to the exceptions and limitations in the Loan Documents, in each case, pursuant to such documents, agreements and instruments as the Administrative Agent shall reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent. In connection therewith, the applicable Loan Party shall deliver to the Administrative Agent all documentation and other information reasonably requested by the Administrative Agent in writing regarding such Subsidiary as may be required to comply with the applicable “know your customer” rules and regulations, including the USA Patriot Act.
(f) Notwithstanding any provision of the Loan Documents foregoing or anything to the contrarycontrary contained in any Loan Document, the parties hereto acknowledge and agree that (i) in circumstances where the Administrative Agent and Borrower Representative in good faith determine that the cost, burden or consequences of obtaining or perfecting a security interest in any asset that constitutes Collateral is excessive in relation to the benefit afforded to the Secured Parties thereby, the Administrative Agent in its Permitted Discretion may exclude such Collateral from the creation and perfection requirements set forth in this Agreement and the other Loan Documents, (ii) the Administrative Agent in its Permitted Discretion may grant extensions of time for the creation or perfection of Liens in particular property where the Administrative Agent and the Borrower Representative determine that such creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other Loan Document, (iii) no security or pledge agreements or other Collateral Documents governed under the laws of any non-U.S. jurisdiction shall be required (other than the laws of Canada, the United Kingdom, or The Netherlands), and the Loan Parties shall not be required to grant a security interest take any actions outside the U.S. to create or perfect Liens in any personal assets located or titled outside the U.S. (other than Collateral located or titled in Canada, the United Kingdom, or The Netherlands) except to the extent required as Additional Perfection Steps during a Cash Dominion Period, and (iv) no mortgages or deeds of trust (or similar documentation providing Liens with respect to real property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreementunder any non-U.S. jurisdiction) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementshall be required.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a Loan Party may at its election cause any of its Subsidiaries, and shall (within 30 days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesSubsidiaries) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was or which ceases to be an Immaterial Subsidiary butafter the Effective Date, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to (A) become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D G hereto (the “Joinder Agreement”)) and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower The Borrowers and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the a Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.. In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the Administrative Agent granted under any Collateral Document in any Intellectual Property. Table of Contents
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000estate) are acquired by the Borrower Borrowers or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent for the benefit of the Secured Parties upon acquisition thereof), the Borrower Borrowers will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will Borrowers, pursuant to the terms and conditions of the Loan Documents, will, subject to paragraph (e) below, cause such assets to be subjected to a first priority, perfected Lien securing in favor of the Obligations Administrative Agent for the benefit of the Secured Parties, subject only to Liens permitted under Section 6.02, pursuant to the terms and conditions of the Loan Documents and will take, and cause the other Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cb) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding any other provision of this Agreement or any Loan Document to the contrary, at any time and Excluded Property will be excluded from time the requirements of paragraphs (a) through (d) above. Without limiting the foregoing, (A) none of the following real estate shall be required to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise be made subject to a mortgage: (1) real estate included in the aggregate more Available Collateral, (2) real estate that is not owned by a Loan Party, (3) any property having a fair value less than 7.5% $10,000,000 so long as the fair value of Total Assets as of all property excluded pursuant to this clause (3) does not exceed $50,000,000 in the end of aggregate, and (4) real estate owned by the most recently ended fiscal quarter of Company or by a Loan Party that is a "Restricted Subsidiary" under the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are Existing Notes Indenture; (B) no Foreign Pledge Agreement shall be required to be delivered pursuant to this Agreement (or such later date except as agreed to by the Company and the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries a letter agreement relating to become additional post-closing collateral matters; and (C) no Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases Party shall be required to be true.
(f) Notwithstanding pledge any provision of the Loan Documents to the contrary, the Loan Parties Equity Interest in Brunswick Financial Services Corporation and Brunswick Financial Services Corporation shall not be required to grant become a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementLoan Party.
Appears in 1 contract
Samples: Credit Agreement (Brunswick Corp)
Additional Collateral; Further Assurances. (ai) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a Loan Party an Obligor shall cause (ia) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement First Amendment Effective Date in accordance with the terms of this Agreement and (iib) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of each other Person which guarantees the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial SubsidiarySenior Debt, to become a Loan Party within 20 Business Days execute and deliver to the Subordinated Collateral Agent (1) either (y) the Subsidiary Guaranty or such later date as agreed to by the Administrative Agent in its sole discretion(z) by executing a Joinder Agreement in substantially to the form set forth Subsidiary Guaranty, as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereofapplicable, each upon which such Person (i) shall automatically become a Loan Party hereunder Subsidiary Guarantor thereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Transaction Documents and (ii2) either (y) the Subsidiary Security Agreement or (z) a Joinder Agreement to the Subsidiary Security Agreement, as applicable, upon which such Person will simultaneously therewith or as soon as practicable thereafter grant Liens to the Subordinated Collateral Agent, for the benefit of the Subordinated Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from holders of the Guarantee and Collateral Agreement to the extent required by the terms thereofSubordinated Notes, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party Person which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.;
(bii) Holdings, the Borrower Company and each Subsidiary that is a Loan Party an Obligor will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (ordomestic Subsidiaries, including Equity Interests in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) Securitization SPE and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) or such greater percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.9561 ..956-2(c)(2)) in each Foreign foreign Subsidiary directly owned by the Borrower Company or any domestic Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Subordinated Collateral Agent pursuant to the terms and conditions of the Loan Security Documents or other security documents as the Subordinated Collateral Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.and
(ciii) Without without limiting the foregoing, each Loan Party Obligor will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Subordinated Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02paragraph 3A, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Subordinated Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Transaction Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Security Documents, all at the expense of the Loan PartiesObligors.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11JV Entity), Unrestricted Subsidiary or Securitization Entities) in each case formed or acquired after the Second Restatement Date and Effective Date, within thirty (ii30) any days of such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryformation or acquisition, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and such Loan Party shall deliver legal opinions and documents consistent with those delivered on the form set forth Effective Date, to the extent requested by the Administrative Agent. In connection therewith, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms excluding any parcel of the Collateral Documentsreal property owned by any Loan Party.
(b) HoldingsSubject to applicable Requirements of Law, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% [REDACTED]% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orexcluding, in for the case avoidance of doubt, any JV Entity) and (Aii) any Domestic [REDACTED]% (or such greater percentage that (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) 's U.S. parent and (ii2) 65% could not reasonably be expected to cause any Material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party (in each case excluding, for the avoidance of doubt, any JV Entity) to be subject at all times times, or, in the case of any such Foreign Subsidiary or Domestic Subsidiary formed or acquired after the Effective Date, within thirty (30) days of such formation or acquisition, to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.. 51167637.4
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material Material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of Liens under the Agent Security Agreements upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (cd) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (CRH Medical Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) (x) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization Entitiesexcept as otherwise provided in Section 6.08) existing on the Closing Date or formed or acquired after the Second Restatement Closing Date that is required pursuant to the terms of this Agreement to become a Subsidiary Guarantor pursuant to Section 6.08 or (y) any Domestic Subsidiary that was an Unrestricted Subsidiary but has been designated as a Restricted Subsidiary and (ii) thereafter any such Domestic Subsidiary that was an Immaterial Subsidiary as of the Closing Date but, as of the end of the most recently ended fiscal quarter of the Borrower for which internal financial statements are available has ceased to qualify as an Immaterial SubsidiarySubsidiary or except as otherwise provided in Section 6.08, to become a Loan Party within 20 Business Days (or such later date Subsidiary Guarantor as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder and delivering to the Agent such amendments to the Guarantee and Collateral Agreement in substantially as the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each Agent reasonably deems necessary or advisable to cause such Person (i) shall automatically Subsidiary to become a Loan Party hereunder party to the Guarantee and thereupon shall have all Collateral Agreement (and provide guarantees of the rights, benefits, duties, Obligations) and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter to grant Liens to the Agent, for the benefit of the Agent and the Lenders and Secured Parties, in each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral AgreementAgreement or this Section 5.11) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each Subsidiary that is of the Parent (excluding any Foreign Subsidiary and CaptiveCo) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Parent (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Foreign Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesand CaptiveCo) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty.
(b) Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Loan Party which constitutes Collateral (including any real Property owned by any Loan Party that is currently subject to a Mortgage in favor of the Agent on the Effective Date but excluding a Mortgage on all other parcels of real Property located in the U.S. owned by any Loan Party) and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as applicable). Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Parent’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject Notwithstanding anything herein to the limitations set forth or referred to in this Section 5.11contrary, if any material assets (including any owned and except for such real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become Property currently subject to the Lien a Mortgage in favor of the Agent on the Effective Date, no Loan Party shall create, incur, assume or suffer to exist any Lien, mortgage, deed of trust or similar instrument other than Permitted Liens upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liensany of its real Property, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time Material Real Property acquired after the Second Restatement Effective Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Star Group, L.P.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereof (iiand is not an Excluded Subsidiary) any such Domestic or that ceases to be an Excluded Subsidiary that was an Immaterial Subsidiary butafter the date hereof in accordance with the terms of this Agreement within sixty (60) days (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (or such later date as agreed Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, and other documents) that are required under the “Joinder Agreement”)Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other applicable Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may under the applicable Security Agreement. With respect to any Excluded Subsidiary formed or acquired after the date of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be required pledged to the Administrative Agent pursuant to the terms applicable Security Agreement, the applicable Loan Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Collateral Documentsformation or acquisition of such Excluded Subsidiary (A) notify the Administrative Agent thereof and (B) deliver to the Administrative Agent an updated schedule of the pledged Equity Interests to the applicable Security Agreement if reasonably requested by the Administrative Agent and confirmation that the original certificates evidencing such pledged Equity Interests (if any) have been delivered to the Administrative Agent, together with appropriate powers executed in blank.
(b) Holdings, the Borrower The Loan Parties will execute any and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such further documents, agreements and instruments, and will take or cause to be taken all such further actions (including authorizing the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of 91 11584747
(c) Upon the type required acquisition by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense any of the Loan Parties.
(d) Subject to Parties or any of their Subsidiaries after the limitations set date hereof of any interest in any Material Real Property, such Loan Party or Subsidiary, as applicable, shall immediately so notify the Administrative Agent, setting forth or referred to in this Section 5.11with specificity a description of the interest acquired, if the location of the Material Real Property, any material assets (including any owned real property structures or improvements thereto but excluding leasehold interests) (but only those having a fair market thereon and either an appraisal or such Loan Party's or Subsidiary's good-faith estimate of the current value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a such Material Real Property. The Administrative Agent shall notify such Loan Party after the Second Restatement Date or Subsidiary, as applicable, whether it intends to require a Mortgage (and any other than assets constituting Collateral under the Guarantee Real Property Deliverables) with respect to such Material Real Property. Upon receipt of such notice requesting a Mortgage (and Collateral Agreement that become subject to the Lien any other Real Property Deliverables) such Loan Party or Subsidiary, as applicable, shall promptly and in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph any event within sixty (c60) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for acquisition of such quarter are required to be delivered pursuant to this Agreement Material Real Property (or such later date time as agreed to by the Administrative Agent may agree in its sole discretion), cause deliver one or more Mortgages creating a perfected, first priority Lien (in terms of priority, subject only to Permitted Specified Liens) on such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that Material Real Property and such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not other Real Property Deliverables as may be required by the Administrative Agent with respect to grant a security interest such Material Real Property. The Borrowers shall pay all fees and expenses, including, without limitation, reasonable attorneys' fees and expenses, and all title insurance charges and premiums, in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (connection with each as defined in the Guarantee and Collateral Agreement) pursuant to Loan Party's obligations under this Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement5.14(c).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsRequirement of Law, the Borrower Borrowers and each of their Restricted Subsidiaries will cause each Material Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), not an Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and any Person (other than an Unrestricted Subsidiary) that otherwise becomes a Material Domestic Subsidiary after the date of this Agreement to become either (i) a Loan Guarantor or (ii) any a Loan Guarantor and a Borrower, as elected by the Borrowers, by executing a Joinder Agreement and an assumption agreement to the Security Agreement in substantially the form attached as an annex thereto within thirty (30) days of such formation or acquisition or of such Person otherwise becoming a Material Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (iA) shall automatically become either (x) a Loan Party Guarantor or (y) a Loan Guarantor and a Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiB) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral; provided that if such Person is to become a Borrower, on such terms as may be required pursuant to the terms requirements of the Collateral DocumentsSection 5.17 shall have been satisfied.
(b) HoldingsSubject to the Intercreditor Agreement, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case other than subsidiaries of (ACSI Compressco LP) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any owned by such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) Loan Party and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower any Loan Party or any Subsidiary that is a Loan Party of their Domestic Subsidiaries (other than subsidiaries of CSI Compressco LP), in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting Subject to the foregoingIntercreditor Agreement, each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Restricted Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject To the extent any real property is included in the Collateral, each Loan Party will, and will cause each Subsidiary to, execute and/or deliver, as applicable, such other documents as the Administrative Agent may reasonably request on behalf of any Lender that is a regulated financial institution or any Affiliate of such a Lender (each, a “Regulated Lender Entity”), in each case, to the limitations set forth extent such other documents are required for compliance by such Regulated Lender Entity with applicable law with respect to flood insurance diligence, documentation and coverage under all applicable Flood Laws. Prior to signing by the Loan Parties of any mortgage or referred deed of trust to secure the Secured Obligations, the applicable Loan Parties and the Administrative Agent shall have provided each Regulated Lender Entity requesting the same a copy of the life of loan flood zone determination relative to the property to be subject to such mortgage or deed of trust delivered to the Administrative Agent and copies of the other documents required by any such Regulated Lender Entity as provided in this Section 5.11the preceding sentence and shall have received confirmation from each Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, if conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity).
(e) If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000and any other Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Security Agreement or any other Collateral Agreement Document that become subject to the Lien in favor of under the Agent Security Agreement or such other Collateral Document upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection 5.14, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement (including, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a wholly-owned Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days forty five days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a wholly-owned Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, Holdings, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement (iiincluding, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) will simultaneously therewith in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a wholly-owned Material Domestic Subsidiary, in each case, within forty five days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a wholly-owned Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) ), Holdings, the Borrower and each other wholly- owned Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as that is a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic SubsidiaryFSHCO) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of each Subsidiary that is a CFC or FSHCO (including any Subsidiary that becomes a CFC or FSHCO after the Effective Date), in each Foreign Subsidiary case, directly owned by the Borrower or any wholly-owned Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing or anything else herein or in any other Loan Document to the contrary, howeverin no event shall (A) the assets of any CFC or FSHCO constitute security or secure, this paragraph or such assets or the proceeds of such assets be required to be available for, payment of the Obligations, (bB) shall not require more than sixty- five percent (65%) of the issued and outstanding Equity Interests entitled to vote of any CFC or FSHCO, in each case, owned directly by the Borrower or any wholly-owned Material Domestic Subsidiary be required to grant a security interest in be pledged to secure the Obligations or (iC) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests any CFC or FSHCO, in favor of the Agent or to secure any debt securities of each case, not owned directly by the Borrower or any wholly-owned Material Domestic Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary required to be filed with pledged to secure the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryObligations.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject ; provided that, notwithstanding anything else contained herein or in any other Loan Document to the limitations set forth or referred contrary, (x) the foregoing shall not apply to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is not a Loan Party after Material Domestic Subsidiary or property of any Subsidiary that is not Material Domestic Subsidiary or any Excluded Property (as defined in the Second Restatement Date Security Agreement), (y) any such documents and deliverables (other than assets constituting Collateral certain mortgages of material real property (if required)) shall be governed by New York law and (z) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), leasehold mortgages or landlord waivers, estoppels or collateral access letters shall be required to be entered into hereunder or under the Guarantee and Collateral any other Loan Document. Notwithstanding any provision set forth in this Agreement that become subject to the Lien contrary, in favor no event shall any Loan Party be required to (A) make any filings or take any other action to record or perfect the Administrative Agent’s interest in any intellectual property outside the U.S. or (B) take any actions in any non-U.S. jurisdiction or that are required by the laws of any non-U.S. jurisdiction in order to (x) create any security interests in such assets located or titled outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent U.S. or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and (y) perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiessecurity interests.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 1 contract
Additional Collateral; Further Assurances. (ai) Subject to applicable law, Holdingseach Borrower shall cause each of its wholly- owned Material Domestic Subsidiaries formed or acquired on or after the date of this Agreement in accordance with the terms of this Agreement to become a Guarantor (provided, the Borrower and each that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a Loan Party wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) be deemed to be an acquisition for the purposes of this Section 5.11Agreement), Unrestricted Subsidiary or Securitization Entitieswithin thirty (30) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a Joinder Agreement in substantially the form joinder agreement set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(ii) will simultaneously therewith Subject to applicable law, each Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall be deemed to be an acquisition for the purposes of this Agreement) and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, (A) within thirty (30) days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, and (B) within sixty (60) days (or such later date as the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such terms Subsidiary becomes a Material Domestic Subsidiary, as may be required applicable) to execute a Mortgage, pursuant to which such Material Domestic Subsidiary shall grant Liens to the terms Administrative Agent, for the benefit of the Collateral Documents.
Administrative Agent and the Lenders, in any property of such Loan Party which constitutes Material Real Property and satisfy all Mortgage Requirements in connection therewith. (biii) HoldingsSubject to the foregoing clauses (i) and (ii), the Borrower and each Subsidiary that is a Loan Party will cause (iA) 100% of the issued and outstanding Equity Interests Stock of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or and (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Stock entitled to vote (within the meaning of Treas. Reg.
Section 1. Section 1.956956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Stock not entitled to vote (within the meaning of Treas. Reg.
Section 1. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956956-2(c)(2)) in each Foreign Excluded Subsidiary (including any Subsidiary who becomes an Excluded Subsidiary after the Effective Date) directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereof (iiand is not an Excluded Subsidiary) any such Domestic or that ceases to be an Excluded Subsidiary that was an Immaterial Subsidiary butafter the date hereof in accordance with the terms of this Agreement within sixty (60) days (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, security agreements, the “Joinder Agreement”)Mortgage and other documents) that are required under the Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may under the Security Agreement. With respect to any Excluded Subsidiary formed or acquired after the date of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be required pledged to the Administrative Agent pursuant to the terms Security Agreement, the applicable Loan Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Collateral Documentsformation or acquisition of such Excluded Subsidiary notify the Administrative Agent thereof.
(b) Holdings, the Borrower The Loan Parties will execute any and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such further documents, agreements and instruments, and will take or cause to be taken all such further actions (including authorizing the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), ) which may be required by law any Requirement of Law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.the
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdingsas promptly as possible but in any event not later than sixty (60) days following the date on which any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower (or the Administrative Agent as contemplated by the definition of “Material Domestic Subsidiary”) as, a Material Domestic Subsidiary, pursuant to the definition of “Material Domestic Subsidiary,” the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial such Subsidiary (except as otherwise provided in paragraph (ex) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement and (y) to deliver to the Administrative Agent a joinder to the Security Agreement (in substantially the form set forth as Exhibit D hereto (contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the “Joinder Agreement”)terms and provisions thereof, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel; provided, however, that no Domestic Subsidiary of a Foreign Subsidiary and no Domestic Subsidiary HoldCo shall be required to become a Loan Party hereunder. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and a “Grantor” under the Security Agreement (pursuant to the terms thereof) and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity capacities under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsThe Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether personal, tangible, intangible, or mixed, but other than any Excluded Collateral) to be subject at all times to first priority, perfected Liens in favor of the Borrower Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and each Subsidiary that is a conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.02. Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its directly owned Domestic Subsidiaries (or, in the case of (A) any other than Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (BHoldCos), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to CFC or Domestic US-DOCS\103717350.16 Subsidiary Holdco to, in each case, be subject at all times to a first priority priority, perfected Lien (subject to Liens permitted under Section 6.02) in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary CFC shall be required hereunder to the extent a the Administrative Agent or its counsel determines that such pledge of such Equity Interests in favor would not provide material credit support for the benefit of the Agent or Secured Parties pursuant to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawlegally valid, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarybinding and enforceable pledge agreements.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject in form and substance reasonably satisfactory to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
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Additional Collateral; Further Assurances. (a) Subject to applicable lawthe Term/ABL Intercreditor Agreement, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than except for any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereofEquity Interests constituting Excluded Assets, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries directly owned by such Loan Party (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary those described in clause (Biii) of this sentence), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary FSHCO or CFC directly owned by such Loan Party, and (iii) 65% of the Borrower issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each FSHCO or any Subsidiary that is a CFC directly owned by such Loan Party Party, in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably requestDocuments; provided, however, this paragraph in respect of clause (biii) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary above, to the extent a pledge the granting of such Lien with respect to such Equity Interests shall no longer result in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC materially adverse U.S. federal income tax consequences (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to determined by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties good faith consultation with the Borrower (notwithstanding it being agreed and understood that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries(i) such that materially adverse U.S. federal income tax consequences exist as of the foregoing condition ceases Closing Date and (ii) any potential adverse tax consequence in excess of $250,000 (as determined by the Borrower’s external tax advisors) shall be deemed to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarymaterially adverse), the Loan Parties shall not be pledge 100% of the issued and outstanding Equity Interests in such FSHCO or CFC, as applicable.
(b) Subject to the terms of the Term/ABL Intercreditor Agreement, and to the extent required by this Agreement or any Collateral Document, the Borrower will take, and will cause the other Loan Parties to grant a take, all actions that are necessary or appropriate to (a) maintain the Administrative Agent’s security interest in the Collateral in full force and effect at all times (including the perfection and priority thereof), (b) preserve and protect the Collateral and (c) protect and enforce the Borrower’s and the other Loan Parties’ respective rights and title to, and the security interest of the Administrative Agent in, the Collateral; provided, however, that the Administrative Agent and the Lenders shall release any personal property Lien upon any Collateral that is the subject of a type Disposition (or owned by any Loan Party which is the subject of a Disposition) permitted under the terms of this Agreement (other than a Disposition to a Person that would not constitute Pledged Collateral is a Loan Party). The Borrower will execute, and will cause the other Loan Parties to execute, acknowledge where appropriate, and deliver, and cause to be executed, acknowledged where appropriate, and delivered, from time to time promptly at the reasonable request of the Administrative Agent, all such instruments and documents as are necessary or Article 9 Collateral (each as defined appropriate to maintain, to the extent permitted by applicable law, the Administrative Agent’s perfected security interest in the Guarantee Collateral to the extent and Collateral Agreement) in the priority required pursuant to Section 3.01 or Section 4.01 of this Agreement and the Guarantee and Collateral AgreementDocuments.
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Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a U.S. Loan Party shall cause (i) each of its the Domestic Subsidiaries and each of the First-Tier Foreign DREs (other than any Immaterial Subsidiary Investments in Persons that are permitted to be made pursuant to Sections 6.04(c)(ii) and (except as otherwise provided in paragraph (e) of this Section 5.11iii), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a U.S. Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, Lender Parties in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such U.S. Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its the Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign SubsidiarySubsidiaries, (yii) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote of each of the First-Tier Foreign DREs, (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (iiiii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary, (within iv) 100% of the meaning non-voting Equity Interests of Treas. Reg. Section 1.956each First-2(c)(2)Tier Foreign Subsidiary, and (v) 309/476 of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote, and 100% of the issued and outstanding non-voting Equity Interests, of the Canadian Borrower (it being understood that all such Equity Interests described in this clause (v) shall be pledged by Xxxxx Canada LP and not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)by Xxxxx Canada GP) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent (for the benefit of the U.S. Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request, provided, however, that (i) if the Canadian Borrower issues additional Equity Interests that are entitled to vote, Xxxxx Canada LP agrees to promptly pledge to the Administrative Agent such additional number of whole limited partnership units of the Canadian Borrower equal to approximately (but not in excess of) 65% of such additional limited partnership units that are so issued and (ii) none of the Equity Interests of Xxxxxx Xxx IP Company LLC shall be subject to such Lien so long as 100% of the Equity Interests of Xxxxxx Xxx IP Company LLC are not owned by one or more U.S. Loan Parties. The Borrowers agree if (a) the Administrative Agent notifies the Borrower Representative that as a result of a change in law there is a reason to believe that a pledge of a greater percentage of any First-Tier Foreign Subsidiary’s voting Equity Interests or a guarantee by any First-Tier Foreign Subsidiary of the Guaranteed Obligations would not result in a “deemed dividend” under Section 956 of the Code and (b) subsequent to the receipt of such notice the Borrower Representative reasonably determines (which determination the Borrower Representative agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Administrative Agent) that a pledge of more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such First-Tier Foreign Subsidiary or a guarantee by such First-Tier Foreign Subsidiary of the Guaranteed Obligations would not result in such a “deemed dividend” or any other tax liability to the Borrowers, the applicable Borrower will promptly pledge such greater percentage of the voting Equity Interests of each such First-Tier Foreign Subsidiary and cause each such First-Tier Foreign Subsidiary to provide a guarantee of the Guaranteed Obligations, in each case to the extent that the foregoing would not result in such a “deemed dividend” under Section 956 of the Code or other tax liability to the Borrowers. Table of Contents
(c) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries that is organized under the laws of Canada or any province thereof (other than those Persons in which Investments are made pursuant to Section 6.04(c)(ii) and (iii)) to become party to a guarantee agreement that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in substantially the form of the Canadian Guarantee referred to in clause (a) of the definition thereof) and a security agreement (which shall, among other things, pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest in all the personal property of each such Subsidiary, the foregoing to be in a form substantially similar to General Security Agreement, the Securities Pledge Agreement and, if any of such assets is located in the Province of Quebec, the Deed of Hypothec, in each case as the foregoing are referred to in the definition of “Canadian Security Agreement”) that secures repayment of the Canadian Obligations, together with such other documentation and filings that the Administrative Agent may reasonably require in order to perfect its first priority security interest in the assets subject to the terms of such Security Agreement; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests that so long as 100% of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryGRI are not owned by one or more Loan Parties, none of the Equity Interests of GRI shall be subject to such Lien.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, hypothecs, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsRequirement of Law, the Borrower Borrowers and each of their Restricted Subsidiaries will cause each Material Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), not an Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and any Person (other than an Unrestricted Subsidiary) that otherwise becomes a Material Domestic Subsidiary after the date of this Agreement to become either (i) a Loan Guarantor or (ii) any a Loan Guarantor and a Borrower, as elected by the Borrowers, by executing a Joinder Agreement and an assumption agreement to the applicable Security Agreement in substantially the form attached as an annex thereto within thirty (30) days of such formation or acquisition or of such Person otherwise becoming a Material Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (iA) shall automatically become either (x) a Loan Party Guarantor or (y) a Loan Guarantor and a Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiB) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral; provided that if such Person is to become a Borrower, on such terms as may be required pursuant to the terms requirements of the Collateral DocumentsSection 5.17 shall have been satisfied.
(b) HoldingsSubject to the Intercreditor Agreement, the Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orother than subsidiaries of CSI Compressco LP) owned by such U.S. Loan Party and (i) 65% 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) 's U.S. parent and (ii2) 65% could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower any U.S. Loan Party or any Subsidiary that is a Loan Party of their Domestic Subsidiaries (other than subsidiaries of CSI Compressco LP), in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties[Reserved].
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to any applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Significant Domestic Subsidiaries Subsidiary (other than any Immaterial Excluded Domestic Subsidiary) and, to the extent no adverse tax consequences would result to the Parent or any of its subsidiaries as a result thereof (in the reasonable determination in good faith of the Borrower, in consultation with the Administrative Agent) each Significant Foreign Subsidiary (except as otherwise provided in paragraph (e) other than any CFC or any Subsidiary of this Section 5.11a CFC), Unrestricted Subsidiary or Securitization Entities) in each case, formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement within thirty (30) days of such formation or acquisition (or such longer period of time that the Administrative Agent may permit in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”its sole discretion). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsSubject to clause (ii) below, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Significant Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Excluded Domestic Subsidiary, a “DRE”) that holds more and Significant Foreign Subsidiaries (other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock any CFC or any Subsidiary of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic SubsidiaryCFC) and (ii) 65% (or such greater percentage that (1) would not reasonably be expected to cause the undistributed earnings of any CFC as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such CFC’s U.S. parent and (2) would not reasonably be expected to cause any adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Significant Domestic Subsidiary that is a Loan Party FSHCO and each Significant Foreign Subsidiary that is a CFC to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents Collateral Documents as the Administrative Agent shall reasonably request; provided.
(c) Notwithstanding the foregoing clauses of this Section 5.14, howeverif as of the last day of any fiscal quarter of the Borrower, this paragraph (bi) shall not require the Borrower aggregate Total Assets (without duplication) of (A) all Domestic Subsidiaries (other than any Excluded Domestic Subsidiary) and all Foreign Subsidiaries (other than any CFC or any Subsidiary of a CFC), in each case, which are not Loan Parties or whose Equity Interests are not subject to grant a security interest first priority, perfected Lien in favor of the Administrative Agent in accordance with Section 5.14(b) and (iB) all FSHCOs and First-Tier Foreign Subsidiaries that are CFCs, in each case, whose Equity Interests are not subject to a first priority, perfected Lien in favor of the Administrative Agent in accordance with and subject to the limits in Section 5.14(b) (collectively, the “Excluded Subsidiaries”) (when combined with the assets of their respective subsidiaries, after eliminating intercompany obligations) are equal to or greater than 5% of the Total Assets of the Borrower and its Subsidiaries on such date or (ii) the aggregate EBITDA of all Excluded Subsidiaries (determined as if references to “Parent and its subsidiaries” in the definitions of “EBITDA”, “Interest Expense” and “Net Income” were references to “each such Excluded Subsidiary and its subsidiaries”) is equal to or greater than 5% of EBITDA (determined as if references to “Parent and its subsidiaries” in the definitions of “EBITDA”, “Interest Expense” and “Net Income” were references to “the Borrower and its Subsidiaries”), then the Borrower shall, no later than ten (10) Business Days (or, in the case of Foreign Subsidiaries, thirty (30) days), after the date on which financial statements for such fiscal quarter are required to be delivered pursuant to Section 5.01(b) (in each case, or such longer period of time as the Administrative Agent may agree in its sole discretion) cause (x) additional Subsidiaries to become Loan Guarantors in accordance with Section 5.14(a) and/or (y) the Equity Interests in additional Subsidiaries (any such Subsidiary, an “Additional Pledged Subsidiary”) to become subject to a first priority, perfected Lien in favor of the Administrative Agent in accordance with and subject to the limits in Section 5.14(b), to the extent necessary for the aggregate Total Assets of the Excluded Subsidiaries to account for less than 5% of the Total Assets of the Borrower and its Subsidiaries and the aggregate EBITDA of the Excluded Subsidiaries to account for less than 5% of aggregate EBITDA of the Borrower and its Subsidiaries; provided that (A) EBITDA for all purposes under this Section 5.14(c) shall be calculated for the most recently ended period of four (4) consecutive fiscal quarters of the Borrower and (B) in no event shall (x) any Equity Interests of any Excluded Domestic Subsidiary, CFC or any Subsidiary of a Subsidiary CFC be required to be pledged pursuant to this clause (c) to the extent an adverse tax consequence would reasonably be expected to result as a pledge of such Equity Interests in favor of the Agent or result thereof to secure any debt securities of the Borrower Loan Party or any Subsidiary that would be entitled to such a security interest would require separate financial statements (in the reasonable determination in good faith of a Subsidiary to be filed the Borrower, in consultation with the SEC Administrative Agent) and (y) any Excluded Domestic Subsidiary or Foreign Subsidiary be required to become a Loan Party pursuant to this clause (c) to the extent an adverse tax consequence would reasonably be expected to result as a result thereof to the Parent or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under its subsidiaries (in the Securities Act (or any successor thereto) or any other lawreasonable determination in good faith of the Borrower, rule or regulation or (ii) in consultation with the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent).
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties, and to the extent any real property is included in the Collateral, such other documents as the Administrative Agent may reasonably request on behalf of any Lender that is a regulated financial institution or any affiliate of such a Lender (each, a “Regulated Lender Entity”), in each case, to the extent such other documents are required for compliance by such Regulated Lender Entity with applicable law with respect to flood insurance diligence, documentation and coverage under the Flood Disaster Protection Act of 1973, as amended (such other documents, collectively, the “Flood Deliverables”). Prior to signing by the Loan Parties of any mortgage or deed of trust to secure the Secured Obligations, the applicable Loan Parties and the Administrative Agent shall have provided each Regulated Lender Entity requesting the same a copy of the life of loan flood zone determination relative to the property to be subject to such mortgage or deed of trust delivered to the Administrative Agent and copies of the Flood Deliverables and shall have received confirmation from each Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity); provided that, notwithstanding anything to the contrary in this Agreement or any other Loan Document (including Section 5.15(a)(i)), so long as the Loan Parties have complied with their obligations under this Section 5.14(d), no Loan Party shall be obligated to deliver any Mortgage prior to the date that is five (5) Business Days after the date the Administrative Agent provides notice to the Borrower that such Mortgage is permitted pursuant to this Section 5.14(d). In addition to the foregoing, and notwithstanding anything to the contrary in this Agreement, in connection with any MXXX Event, the applicable Loan Parties and the Administrative Agent shall have provided the Flood Deliverables relative to any real property subject to a Mortgage hereunder at such time to the applicable Regulated Lender Entity requesting the same and the Administrative Agent shall have received confirmation from each applicable Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity).
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (ca) of this Section, all at the expense of the Loan Parties.
(ef) IfNotwithstanding the foregoing clauses of this Section 5.14, at if (i) the Borrower or any time Subsidiary incurs Permitted Acquisition Debt which Permitted Acquisition Debt is secured by Excluded Assets or (ii) the Term Loan Facility is paid in full in cash, the Administrative Agent and from time the Lenders hereby agree to time after release any Liens in their favor on such Excluded Assets (if any), upon the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter written request of the Borrower and or the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowerapplicable Subsidiary, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents subject to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property terms and conditions of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement9.02(c)(A).
Appears in 1 contract
Samples: Credit Agreement (Cactus, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereof (iiand is not an Excluded Subsidiary) any such Domestic or that ceases to be an Excluded Subsidiary that was an Immaterial Subsidiary butafter the date hereof in accordance with the terms of this Agreement within sixty (60) days (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, and other documents) that are required under the “Joinder Agreement”)Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other applicable Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may under the applicable Security Agreement. With respect to any Excluded Subsidiary formed or acquired after the date of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be required pledged to the Administrative Agent pursuant to the terms applicable Security Agreement, the applicable Loan Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Collateral Documentsformation or acquisition of such Excluded Subsidiary (A) notify the Administrative Agent thereof and (B) deliver to the Administrative Agent an updated schedule of the pledged Equity Interests to the applicable Security Agreement if reasonably requested by the Administrative Agent and confirmation that the original certificates evidencing such pledged Equity Interests (if any) have been delivered to the Term Agent or Other Secured Debt Agent, if applicable, together with appropriate powers executed in blank, or if the Term Loan Obligations and Other Secured Debt Obligations have been repaid in full, the Administrative Agent.
(b) Holdings, the Borrower The Loan Parties will execute any and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such further documents, agreements and instruments, and will take or cause to be taken all such further actions (including authorizing the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), ) which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request, to cause the Collateral and Guaranty Requirement to be and remain satisfied at all times.
(c) If a Mortgage Triggering Event occurs and is continuing, then upon the request of the Administrative Agent, the applicable Loan Party owning any Material Real Property shall promptly and in any event within ninety (90) days after the Administrative Agent’s request (or such later time as is reasonably practicable under the circumstances and as the Administrative Agent may agree in its reasonable discretion exercised in good faith), each in form and substance reasonably acceptable to carry out the terms Administrative Agent and conditions customary for syndicated loan transactions of this type, (i) execute and deliver a Mortgage, in favor of the Administrative Agent, for the benefit of the Secured Parties, covering such real property, creating a Lien on such real property prior and superior in right to all other Liens on such real property (except Liens in favor of the Term Agent and Other Secured Debt Agent, and other Permitted Liens, and with respect to the Liens in favor of the Term Agent and Other Secured Debt Agent, subject in all events to the ABL Intercreditor Agreement and, if applicable, Other Secured Debt Intercreditor Agreement) and an Environmental Indemnity with respect thereto, (ii) if requested by the Administrative Agent, provide the Administrative Agent, for the benefit of the Secured Parties, with (1) title searches in respect of such real property as well as a current map or plat of an as-built survey thereof, together with a surveyor’s certificate, or any existing survey as to which a “no change” affidavit which is satisfactory to the title insurance company insuring the Mortgage, (2) title insurance policies (limited in the maximum amount secured to the fair market value of the property in those jurisdictions in which a mortgage recording tax may be imposed), (3) recently prepared environmental site assessment reports or updates to existing environmental reports, which reports or updates are not more than six (6) months old, in each case together with letters executed by the environmental firms preparing such environmental reports authorizing the Administrative Agent and the other Loan Documents Lenders to rely on such reports, and (4) any consents required to ensure perfection and priority permit the delivery of the Liens created Mortgage (if any) or intended estoppels reasonably deemed necessary by the Administrative Agent in connection with such Mortgage provided that the Loan Parties shall only be required to use commercially reasonable efforts to request the delivery of any requested estoppels, (iii) deliver a completed flood hazard determination from a third party vendor and related documents required pursuant to the immediately following sentence and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the matters described above, which opinions shall be from counsel reasonably satisfactory to the Administrative Agent (it being agreed that any legal counsel and their form of opinion previously or concurrently delivered to the Term Agent and/or Other Secured Debt Agent, as applicable, shall be deemed reasonably satisfactory to the Administrative Agent). The Administrative Agent shall not enter into any Mortgage in respect of any Real Estate acquired by any Loan Party after the date hereof until (1) the date that occurs forty-five (45) days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Real Estate: (i) a completed flood hazard determination from a third party vendor, (ii) if such Real Estate is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (iii) if such notice is required to be created provided to the applicable Loan Party and flood insurance is available in the community in which such Real Estate is located, evidence of flood insurance, and (2) the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Collateral DocumentsLenders (such written confirmation not to be unreasonably conditioned, all withheld or delayed). Upon the request of the Borrower Representative at any time following any Mortgage Release Event (provided that no subsequent Mortgage Triggering Event shall have occurred), the Administrative Agent shall, at the cost and expense of the Loan Parties.
(d) Subject , execute and deliver mortgage or deed of trust releases relating to any Material Real Property upon which the limitations set forth or referred to in this Section 5.11, if Administrative Agent has filed a Mortgage and any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or documents reasonably requested by the Agent Borrower Representatives in connection therewith, in form and substance sufficient in accordance with local law to grant remove and perfect such Liensdischarge the Mortgage of record and as reasonably requested by any title insurer. Additionally, including actions described in paragraph (c) during the continuation of this Sectiona Mortgage Triggering Event, all at the expense if any of the Loan Parties.
(e) If, at Parties acquire any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of Material Real Property, such Loan Party shall promptly so notify the Administrative Agent, setting forth with specificity a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 description of the Guarantee interest acquired, the location of the Material Real Property, any structures or improvements thereon and Collateral Agreementeither an appraisal or such Loan Party’s good-faith estimate of the current value of such Material Real Property.
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Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents[Reserved].
(b) Holdings, (x) Subject to the Borrower Guaranty and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, Security Principles in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, Subsidiaries and (y) another DRE in order to ensure that holds more than 65% the covenant in Section 6.13 below is satisfied, each Borrower and each Guarantor will cause substantially all of the their respective assets (including all Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary intercompany receivables directly owned by the Borrower or any Subsidiary that is a Loan Party them but excluding all Real Estate Assets) to be subject at all times to a first priority (to the extent such a first priority concept is applicable in the jurisdiction of such Borrower or Guarantor) perfected Lien in favor of the Agent Collateral Trustee pursuant to the terms and conditions of the Loan Collateral Documents or other security documents as (subject to Permitted Liens), including by taking the Agent shall reasonably request; provided, however, this paragraph (bactions referred to in Section 6.12(f) shall not require within the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarytime periods provided therein.
(c) Without limiting the foregoing, (x) subject to the Guaranty and Security Principles in the case of Foreign Subsidiaries and (y) in order to ensure that the covenant in Section 6.13 below is satisfied, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Agent Collateral Trustee such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust statements and other documents and such other actions or deliveries (including legal opinions of counsel) of the type required by Section 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law the Administrative Agent or which the Agent Collateral Trustee may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (to the extent required herein or therein), all at the expense of the Loan PartiesBorrowers in accordance with Section 10.03(a).
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties[Reserved].
(e) If[Reserved].
(f) To the extent any Subsidiary becomes or is required to become a Guarantor pursuant to Section 6.13, at any the Parent, each Borrower and each other Loan Party shall cause such Subsidiary to (within the time and from time periods provided in Section 6.13 for such Subsidiary to time after the Second Restatement Datebecome a Guarantor, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise or such earlier date as is provided in the aggregate more following clauses (A) through (F), or in each case such later date as may be agreed by the Administrative Agent) execute and deliver (A) all documentation and other information with respect to such Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act no later than 7.5% of Total Assets as five (5) Business Days prior to the date of the end effectiveness of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for applicable Joinder Agreement with respect to such quarter are required to be delivered pursuant to this Agreement Subsidiary (or such later date as may be agreed to by the Administrative Agent in its sole discretionAgent), cause one (B) such documents as set out in Section 4.01(b)(i) as they relate to such Subsidiary and (as the case may be) their shareholders (as if references to certified copy documents are to those documents in sub-paragraph (A) above of this paragraph (f) and reference to the “Closing Date” being the date on which Subsidiary becomes a Guarantor hereunder); (C) a legal opinion of local counsel to the Administrative Agent (or more if customary in the relevant jurisdiction or otherwise, to such Domestic Restricted Subsidiary) relating to such Subsidiary and/or the Collateral Documents required pursuant to paragraph (F) below and covering matters customarily covered by such opinion from such counsel in the relevant jurisdiction for such accession in form and substance reasonably satisfactory to the Administrative Agent, (D) a Joinder Agreement, (E) a Debtor Joinder Agreement with respect to the Intercreditor Agreement five (5) Business Days prior to the proposed effectiveness of the Joinder Agreement with respect to such Subsidiary and (F) appropriate Collateral Documents granting Liens over the shares of such Subsidiary and substantially all of such Subsidiary’s assets (excluding Real Estate Assets and subject, in the case of Foreign Subsidiaries, to the Guaranty and Security Principles) on substantially the same terms as the Collateral Documents then in effect with respect to Subsidiaries organized in the same jurisdiction as existing Guarantors, and otherwise in form and substance reasonably satisfactory to the Collateral Trustee, to the extent such Subsidiary becomes or is required to become additional Loan Parties a Guarantor pursuant to (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesand within the time periods provided in) such that the foregoing condition ceases to be trueSection 6.13.
(fg) [Reserved]. Notwithstanding anything to the contrary in this Section 6.12 or any provision other Collateral Document, with respect to any U.S. Subsidiary, (a) the Collateral Trustee shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets of such U.S. Subsidiary as to which (i) the cost, burden, difficulty or consequence of obtaining or perfecting such Lien (including any stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the Loan Documents security afforded thereby as reasonably determined by the Borrower Representative and the Administrative Agent or (ii) the granting of a Lien on such asset would violate any enforceable anti-assignment provisions of contracts or applicable law or, in the case of assets consisting of licenses, agreements or similar contracts, to the contraryextent the granting of such Lien therein would violate the terms of such license, agreement or similar contract relating to such asset (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or would trigger the termination of any contract pursuant to any “change of control” or similar provision, (b) [reserved], (c) no actions shall be required to be taken in order to create, grant or perfect any security interest in any assets of any U.S. Subsidiary located outside of the U.S. and no foreign law security or pledge agreements (other than with respect to Equity Interests of any Foreign Subsidiary held by such U.S. Subsidiary) or foreign intellectual property filings or searches shall be required, (d) Liens required to be granted or perfected pursuant to this Section 6.12 shall be subject to the Intercreditor Agreement and to exceptions and limitations consistent with those set forth in the Collateral Documents, (e) the Loan Parties shall not be required to seek or obtain any landlord lien waiver, estoppel, warehousemen waiver or other collateral access or similar letter or agreement in respect of any asset of any U.S. Subsidiary and (f) no Loan Party shall be required to (i) grant or take any other action with respect to a security interest in any personal property assets excluded pursuant to the terms of Section 2.2 of the Security Agreement or any U.S. RPA Assets or (ii) take any action with respect to perfection of any security interest in (subject to the qualifications set forth in Section 3.3 of the Security Agreement) (A) assets requiring perfection through control agreements or other control arrangements (other than control of promissory notes and pledged Capital Stock as provided in this Agreement, the Pledge Agreement and the Security Agreement and filing of UCC-1 financing statements), (B) vehicles or other assets subject to state law certificate of title statutes, (C) commercial tort claims with an individual value of less than €10,000,000 (as reasonably determined by the Borrower Representative) or (D) letter of credit rights to the extent a security interest therein may not be perfected as supporting obligations by the filing of a type UCC-1 financing statement on the primary collateral; provided that would notwithstanding the foregoing or anything in the Collateral Documents, the foregoing shall not constitute Pledged Collateral or Article 9 Collateral include any Proceeds (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 UCC), substitutions or Section 4.01 replacements of the Guarantee and Collateral Agreementany such property (unless such Proceeds, substitutions or replacements would otherwise constitute property of any U.S. Subsidiary so excluded).
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