Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial Domestic Subsidiaries) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of such joinder, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents. (b) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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. (c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary. (d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request. (e) Without limiting the foregoing, each Loan Party will, and will cause each 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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. (f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement Fourth Restatement Date in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). In connection with the execution and delivery of any such Joinder Agreement, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries reasonably requested in writing to comply with the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder Agreement or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement Fourth Restatement Date that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company that owns a Subsidiary organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Fourth Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each Canadian Subsidiary and each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement Fourth Restatement Date in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). In connection with the execution and delivery of any such Joinder Agreement, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries reasonably requested in writing to comply with the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder Agreement or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement Fourth Restatement Date that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company that owns a Subsidiary organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Fourth Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each Canadian Subsidiary and each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Fourth Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Subsidiary, any Unrestricted Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
(g) If either (i) the aggregate revenues of all Immaterial Domestic Subsidiaries and Immaterial Canadian Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Immaterial Domestic Subsidiaries and Immaterial Canadian Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Immaterial Domestic Subsidiaries and Immaterial Canadian Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Immaterial Domestic Subsidiaries and Immaterial Canadian Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). In connection with the execution and delivery of any such Joinder Agreement, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries reasonably requested in writing to comply with the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company that owns a Subsidiary organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Third Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Third Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Third Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Third Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Subsidiary, any Unrestricted Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
(g) If either (i) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary and or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D D-1 hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of such joinder, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial any Canadian SubsidiariesSubsidiary constituting an Excluded Subsidiary, an EECOL Acquired Entity or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement (i) that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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, and (ii) that is organized under the laws of the Netherlands (other than such a Subsidiary constituting an Immaterial Foreign Subsidiary) to become a Dutch Loan Guarantor by executing a joinder to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee shall be in form and substance satisfactory to the Administrative Agent).
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, an Unrestricted Subsidiary, a CFC Subsidiary Holding Company, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary, which Lien shall be senior in priority to all other Liens other than the Liens in favor of the Term Loan Agent pursuant to the Term Loan Documents to the extent provided in the ABL-Term Loan Intercreditor Agreement.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary or Dutch Subsidiary acquired after the Effective Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request, which Lien shall be senior in priority to all other Liens other than the Liens in favor of the Term Loan Agent pursuant to the Term Loan Documents to the extent provided in the ABL-Term Loan Intercreditor Agreement.
(e) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Unrestricted Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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. Notwithstanding anything herein or in any other Loan Document to the contrary, any provision of this Agreement or any other Loan Document which would otherwise exempt any Excluded Subsidiary or Unrestricted Subsidiary from any requirement under this Agreement or any other Loan Document to Guarantee the Obligations or grant Liens on its assets as security for the Obligations shall not be in effect if and to the extent such Excluded Subsidiary or Unrestricted Subsidiary provides any Guarantee or grants any Lien under or in respect of the Term Loan Documents.
(g) On or prior to the EECOL Acquisition Closing Date, each Loan Party shall, and shall cause each EECOL Acquired Entity to (i) execute and deliver, or cause to be executed and delivered, to the Administrative Agent the Omnibus Joinder Agreement, pursuant to which (A) each EECOL Acquired Entity shall become a party to (x) this Agreement as additional Loan Party hereunder, (y) a Canadian Guarantee that guarantees repayment of the Canadian Obligations as an additional Canadian Loan Guarantor thereunder and (z) a Canadian Security Agreement that secures repayment of the Canadian Obligations as an additional Grantor thereunder and (B) the Loan Parties and the EECOL Acquired Entities, as applicable, shall pledge 100% of the Equity Interests in the EECOL Acquired Entities as security or the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and (ii) execute and deliver, or cause to be executed and delivered, to the Administrative Agent such Control Agreements, Canadian Hypothec, landlord waivers, opinions, certificates, amendments, instruments, agreements and other documents, and shall take or cause to be taken such further actions (including the filing and recording of financing statements, and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may 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 anything herein to the contrary, (1) Accounts and Inventory of the EECOL Acquired Entities acquired in the EECOL Acquisition which would otherwise constitute Eligible Accounts and Eligible Inventory may be included in the Canadian Borrowing Base without a field examination or Inventory appraisal for a period of 60 days (or such longer period, not to exceed 100 days, as the Administrative Agent, in its discretion, may agree) after the consummation of the EECOL Acquisition and the execution and delivery of the Omnibus Joinder Agreement and other documents and items referred to above in this Section 5.13(g), it being understood that, unless otherwise agreed by the Administrative Agent in its Permitted Discretion, such Accounts and Inventory will cease to be included in the Canadian Borrowing Base from and after the 60th day (or such later date, not later than the 100th day, as the Administrative Agent, in its discretion, may agree) after the consummation of the EECOL Acquisition if the Administrative Agent has not received a field examination and Inventory appraisal in accordance with Section 5.11(c) and other due diligence acceptable to the Administrative Agent by such 60th day (or such later date, not later than the 100th day, as the Administrative Agent, in its discretion, may agree), and (2) the Loan Parties shall not be required to deliver legal opinions and secretary certificates as to the EECOL Acquired Entities until the first to occur of (I) the consummation of the Post-Closing Amalgamation among the EECOL Parent, EESA Holdings Ltd., Jarich Holdings Ltd. and EECOL Holdings Ltd. and (II) the date which is four (4) Business Days after the EECOL Acquisition Closing Date.
(h) Upon the consummation of any Post-Closing Amalgamation, the Loan Parties shall, and shall cause the entity resulting from such Post-Closing Amalgamation to, execute and deliver such ratification and confirmation documents, amendments, opinions, instruments and other documents, and shall take or cause to be taken such further actions (including the filing and recording of financing statements and financing change statements, and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which the Administrative Agent may reasonably request to confirm that such entity has succeeded to and is bound by all of the obligations of each Canadian Loan Party party to such amalgamation under the Loan Documents in the same manner and to the same extent as each such Canadian Loan Party was so bound immediately prior to such amalgamation as a Canadian Loan Guarantor or Canadian Borrower, as applicable, under the Loan Documents and to ensure the continued perfection and priority of the Liens created or intended to be created by the Collateral Documents on the assets and Equity Interests of such entity, all at the expense of the Loan Parties.
(i) If either (i) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto).
Appears in 1 contract
Additional Collateral; Further Assurances. (a1) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(ba) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement (i) that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, 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, and (ii) that is organized under the laws of the Netherlands (other than such a Subsidiary constituting an Immaterial Foreign Subsidiary) to become a Dutch Loan Guarantor by executing a joinder to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee shall be in form and substance reasonably satisfactory to the Administrative Agent).
(cb) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Second Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Second Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Second Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary, which Lien shall be senior in priority to all other Liens other than the Liens in favor of the Term Loan Agent pursuant to the Term Loan Documents to the extent provided in the ABL-Term Loan Intercreditor Agreement.
(dc) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Second Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request, which Lien shall be senior in priority to all other Liens other than the Liens in favor of the Term Loan Agent pursuant to the Term Loan Documents to the extent provided in the ABL-Term Loan Intercreditor Agreement.
(ed) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(fe) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Subsidiary, any Unrestricted Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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. Notwithstanding anything herein or in any other Loan Document to the contrary, any provision of this Agreement or any other Loan Document which would otherwise exempt any Excluded Subsidiary or Unrestricted Subsidiary from any requirement under this Agreement or any other Loan Document to Guarantee the Obligations or grant Liens on its assets as security for the Obligations shall not be in effect if and to the extent such Excluded Subsidiary or Unrestricted Subsidiary provides any Guarantee or grants any Lien under or in respect of the Term Loan Documents.
(f) If either (i) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto) .
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, each Loan Party shall will cause each of its (i) U.S. Domestic Subsidiaries Subsidiary (other than Immaterial Domestic Subsidiariesany FSHCO) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to promptly become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D hereto (the “a Joinder Agreement”), and (ii) Canadian Domestic Subsidiary formed or acquired after the date of this Agreement to promptly become a Canadian Loan Party by executing a Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Borrower Loan Guarantor or U.S. Canadian Loan Guarantor hereunder, as specified by such Person at the time of such joinderapplicable, and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Administrative Agent and the other Secured Parties, in all personal any property of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. or Canada owned by any Loan Party (other than Excluded Assets); provided, however, that (A) CFCs and FSHCOs shall not guarantee U.S. Secured Obligations and the property of CFCs and FSHCOs shall not secure U.S. Secured Obligations unless due to a type required change in applicable law after the date hereof such guaranty, (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 encumbered pursuant treated as a deemed dividend to such foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any adverse tax consequences in the reasonable opinion of the Borrower Representative and (B) notwithstanding the forgoing, Canadian Borrower shall not be obligated to execute any Collateral DocumentsDocuments governed by laws of any province or territory of Canada other than Quebec or file any financing statements in any province or territory of Canada other than Quebec unless the aggregate value of the assets of Canadian Borrower located in provinces or territories of Canada outside of Quebec exceeds CAD 1,000,000.
(b) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a Each U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each U.S. Domestic Subsidiary Subsidiaries (other than an Immaterial Domestic Subsidiary, Excluded Subsidiaries and any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real propertyFSHCO) that is formed or acquired after the Effective Date, and (ii) 65% (or such greater percentage that, due to a change in applicable law after the date hereof such guaranty, (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 adverse tax consequences in the reasonable opinion of the Equity Interests constituting Borrower Representative) of the total combined classes of issued and outstanding Equity Interests entitled to vote in each first(within the meaning of Treas. Reg. Section 1.956-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary2(c)(2)) that is formed or acquired after the Effective Date, and (iii) 100% of the non-voting issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each of first-tier Foreign CFC and each FSHCO directly owned by such Borrower or any U.S. Domestic Subsidiary (other than an Immaterial Foreign Subsidiaryexcluding any FSHCO) that is formed or acquired after the Effective Date, to become be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (Agent, for the benefit of the U.S. Lender 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 within thirty (30) days request; provided that notwithstanding the foregoing each U.S. Loan Party and U.S. Domestic Subsidiary shall cause 100% of the formation issued and outstanding Equity Interests in each CFC and each FSHCO directly owned by such Borrower or acquisition of such Subsidiary.
(d) To U.S. Domestic Subsidiary to secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a . Each Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), of its Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (Agent, for the benefit of the Canadian Lender 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.
(ec) Without limiting the foregoing, each (i) U.S. Loan Party will, and will cause each Subsidiary (other than Excluded Subsidiaries), and (ii) Canadian Loan Party will, and will cause each Subsidiary (other than Excluded Subsidiaries) of such Canadian 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 4.01, as 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.
(fd) If any material assets constituting personal Collateral (including any real property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or improvements thereto or any other Subsidiary that is a special purpose entity which has no material assets other than real propertyinterest therein, but excluding Excluded Assets) are acquired by any Loan Party after the Effective Date (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement Collateral Documents that become subject to the Lien in favor of under the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) Collateral Documents upon acquisition thereof), the Borrower Representative will promptly (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will (ii) take, and cause the each applicable Loan Parties 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) Without limiting the foregoing, if any assets constituting Collateral (including any real property or improvements thereto or any interest therein, but excluding Excluded Assets) with a value in excess of the Dollar Equivalent Amount of $500,000 are maintained by any Loan Party in any province or territory of Canada other than the Province of Quebec, the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof and, if requested by the Administrative Agent or the Required Lenders, cause such assets to be subjected to a Lien securing the Secured Obligations and (ii) take, and cause each applicable Loan 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.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, the Borrowers and each Subsidiary that is a Loan Party shall cause each of its Domestic US Subsidiaries (other than Immaterial Domestic Subsidiaries) or Canadian Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D F hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become (x) with respect to a U.S. US Subsidiary formed or acquired after the date of this Agreement (or any other US Subsidiary which is wholly owned by a US Borrower and approved by the Administrative Agent to become a US Borrower in the Administrative Agent’s Permitted Discretion), a US Borrower, (y) with respect to a Canadian Subsidiary formed or U.S. acquired after the date of this Agreement (or any other wholly owned Canadian Subsidiary approved by the Administrative Agent to become a Canadian Borrower in the Administrative Agent’s Permitted Discretion), a Canadian Borrower, or (z) with respect to any other Person, a Loan Guarantor hereunder, as specified by such Person at the time of such joinder, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative AgentUS Collateral Agent or the Canadian Collateral Agent (as applicable), for the benefit of the Agents, the Lenders, the Export-Related Lender and the Other Secured Parties, in all personal any property of a type required to be encumbered pursuant to such Loan Party which constitutes Collateral, including any parcel of Real Property located in the Collateral DocumentsU.S. or Canada and owned by any Loan Party.
(b) Subject to applicable law, the Canadian Borrower The US Borrowers and each other Canadian Loan Party shall cause each of their US Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests in each of each Domestic Subsidiary (other than an Immaterial Domestic Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Date, its US Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in applicable law after the date hereof, (A) 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 (B) could not reasonably be expected to cause any material adverse tax consequences) of the Equity Interests constituting the total combined classes of issued and outstanding Equity Interests entitled to vote in each first(within the meaning of Treas. Reg. Section 1.956-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary2(c)(2)) that is formed or acquired after the Effective Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 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 Canadian foreign Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), directly owned by any US Borrower or any US Subsidiary to be subject at all times to a first priority, perfected Lien in favor of the Administrative US Collateral Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative US Collateral Agent shall reasonably request. The Canadian Borrowers and each of their Canadian Subsidiaries that is a Loan Party will cause 100% of the issued and outstanding Equity Interests in each of its Canadian Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Canadian Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Canadian Collateral Agent shall reasonably request.
(ec) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative US Collateral Agent or the Canadian Collateral Agent (as applicable) 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, debentures and other documents and such other actions or deliveries of the type required by Section 4.014.1, as applicable), which may be required by law or which the Administrative US Collateral Agent or the Canadian Collateral Agent (as applicable) 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 to become a Loan Party and a Loan Guarantor and to grant Liens to the US Collateral Agent or the Canadian Collateral Agent (as applicable) on its assets and have the balance of its Equity Interests pledged to the US Collateral Agent or the Canadian Collateral Agent (as applicable).
(fd) If any material assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, including any Subsidiary which is a borrower under a Real Estate Loan Agreement Property or improvements thereto or any other interest therein) are acquired by the Borrowers or any Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party after the Effective Date (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement Agreements that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) Security Agreements upon acquisition thereof), the applicable Borrower Representative will promptly notify the Administrative Agent, the Canadian Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent, the Canadian Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative US Collateral Agent or the Canadian Collateral Agent (as applicable) 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.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, each U.S. Borrower and each Subsidiary that is a U.S. Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial Domestic Subsidiaries) formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of such joinder, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documentssuch U.S. Loan Party other than Excluded Collateral.
(b) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee guarantee agreement that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative AgentAgent in its Permitted Discretion) and a Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documentseach such Subsidiary other than Excluded Collateral, the foregoing to be in a form substantially similar to the 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.
(c) To secure the prompt payment and performance of all the U.S. Secured Obligations, Holdings, each Domestic Borrower and each Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiary (other than an Immaterial Domestic Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective DateSubsidiaries, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each of its first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective DateSubsidiaries, and (iii) 100% of the non-voting Equity Interests of each of its first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective DateSubsidiaries, to become be subject at all times to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiaryrequest.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(fe) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real propertyExcluded Collateral) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement Fourth Restatement Date in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). In connection with the execution and delivery of any such Joinder Agreement, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries reasonably requested in writing to comply with the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder Agreement or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement Fourth Restatement Date that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company that owns a Subsidiary organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, together with such other US-DOCS\114000287.20119598083.7 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Fourth Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each Canadian Subsidiary and each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Fourth Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Subsidiary, any Unrestricted Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
(g) If either (i) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or US-DOCS\114000287.20119598083.7 Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party shall cause each of its Domestic Subsidiaries (other than Immaterial any Domestic SubsidiariesSubsidiary constituting an Excluded Subsidiary, an Unrestricted Subsidiary or a CFC Subsidiary Holding Company) formed or acquired after the date of this Agreement Fourth Restatement Date in accordance with the terms of this Agreement to become a U.S. Loan Party by executing (i) a U.S. Security Agreement (or a joinder to the U.S. Security Agreement) and (ii) in the case of such Domestic Subsidiary that is to become a U.S. Borrower, the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). In connection with the execution and delivery of any such Joinder Agreement, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries reasonably requested in writing to comply with the 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 U.S. Borrower or U.S. Loan Guarantor hereunder, as specified by such Person at the time of execution of such joinderJoinder Agreement or separate U.S. Loan Party Guaranty, and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Lender Parties, in all personal property of a type required to be encumbered pursuant to the Collateral Documents.
(b) Subject to applicable law, Holdings, the Canadian Borrower Borrowers and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiariesany Subsidiary constituting an Excluded Subsidiary, or an Unrestricted Subsidiary) formed or acquired after the date of this Agreement Fourth Restatement Date that is organized under the laws of Canada or any province thereof or is a CFC Subsidiary Holding Company that owns a Subsidiary organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to (A) a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian Security Agreement (which Canadian Security Agreement 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the Canadian Security Agreement) that secures repayment of the Canadian ObligationsObligations and (B) in the case of any Subsidiary that is to become a Canadian Borrower, a Joinder Agreement, in each case, 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than an Immaterial Domestic Excluded Subsidiary, any an Unrestricted Subsidiary, a CFC Subsidiary which is a borrower under a Real Estate Loan Agreement Holding Company or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Fourth Restatement Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each Canadian Subsidiary and each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary or an Unrestricted Subsidiary) or CFC Subsidiary Holding Company that is formed or acquired after the Effective Fourth Restatement Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Fourth Restatement Date (other than any Canadian Subsidiary constituting an Immaterial Canadian Excluded Subsidiary or an Unrestricted Subsidiary), to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request.
(e) Without limiting the foregoing, each Loan Party will, and will cause each Restricted 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, and other documents and such other actions or deliveries of the type required by Section 4.01, as 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.
(f) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of a Domestic Subsidiary or Canadian Subsidiary constituting an Immaterial Domestic Excluded Subsidiary, an Immaterial Canadian Subsidiary, any Unrestricted Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Loan Parties 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.
(g) If either (i) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated revenues of Holdings and its Subsidiaries for such period or (ii) the aggregate consolidated assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of any fiscal year, constitute 15% or more of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year, in each case as reflected on the most recent annual or quarterly consolidated financial statements of Holdings and its Subsidiaries, then, the Loan Parties (A) shall submit a written notice (a “Designated Immaterial Subsidiary Notice”) to the Administrative Agent designating one or more Immaterial Domestic Subsidiaries and/or Immaterial Canadian Subsidiaries as Subsidiaries which shall no longer constitute Excluded Subsidiaries (any such Subsidiary so designated being a “Designated Immaterial Subsidiary”) such that, after giving effect to such designation, (x) the aggregate revenues of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (x) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary at any time during such fiscal year), constitute less than 15% of the consolidated revenues of Holdings and its Subsidiaries for such period and (y) the consolidated total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries, as of end of such fiscal year (calculated for purposes of this clause (y) on a pro forma basis as if each such Designated Immaterial Subsidiary had not been an Excluded Subsidiary as the last day of such fiscal year), constitute less than 15% of the consolidated total assets of Holdings and its Subsidiaries as of the end of such fiscal year and (B) shall cause each such Designated Immaterial Subsidiary to become a U.S. Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Domestic Subsidiary) or a Canadian Loan Guarantor (in the case of a Designated Immaterial Subsidiary which is a Canadian Subsidiary) and shall, and shall cause each such Designated Immaterial Subsidiary to, execute and deliver to the Administrative Agent all Joinder Agreements, guarantees, Collateral Documents and other agreements and documents and shall take, and cause each such Designated Immaterial Subsidiary to take, such other actions as shall be necessary or which the Administrative Agent may reasonably request to comply with this clause (i) and clauses (a) through (f) of this Section 5.13 as to each such Designated Immaterial Subsidiary (it being understood for avoidance of doubt that, solely for purposes of this clause (B), in determining compliance with such clauses (a) through (f) of this Section 5.13, each such Designated Immaterial Subsidiary shall be treated as if it had been acquired or formed by the Loan Parties as of the date of delivery of the Designated Immaterial Subsidiary Notice with respect thereto).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, the Borrowers and each Subsidiary that is a Loan Party shall cause each of its Domestic US Subsidiaries (other than Immaterial Domestic Subsidiaries) or Canadian Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D EXHIBIT F hereto (the “Joinder Agreement”"JOINDER AGREEMENT"). Upon execution and delivery thereof, each such Person (i) shall automatically become (x) with respect to a U.S. NewCo which is a US Subsidiary (or any other US Subsidiary which is wholly owned by a US Borrower and approved by the Administrative Agent to become a US Borrower in the Administrative Agent's Permitted Discretion), a US Borrower, (y) with respect to a NewCo which is a Canadian Subsidiary (or U.S. any other wholly owned Canadian Subsidiary approved by the Administrative Agent to become a Canadian Borrower in the Administrative Agent's Permitted Discretion), a Canadian Borrower, or (z) with respect to any other Person, a Loan Guarantor hereunder, as specified by such Person at the time of such joinder, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative AgentUS Collateral Agent or the Canadian Collateral Agent (as applicable), for the benefit of the Agents, the Lenders, the Export-Related Lender and the Other Secured Parties, in all personal any property of a type required to be encumbered pursuant to such Loan Party which constitutes Collateral, including any parcel of Real Property located in the Collateral DocumentsU.S. or Canada and owned by any Loan Party.
(b) Subject to applicable law, the Canadian Borrower The US Borrowers and each other Canadian Loan Party shall cause each of their US Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor will cause (i) 100% of the issued and outstanding Equity Interests in each of each Domestic Subsidiary (other than an Immaterial Domestic Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Date, its US Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in applicable law after the date hereof, (A) 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 (B) could not reasonably be expected to cause any material adverse tax consequences) of the Equity Interests constituting the total combined classes of issued and outstanding Equity Interests entitled to vote in each first(within the meaning of Treas. Reg. Section 1.956-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary2(c)(2)) that is formed or acquired after the Effective Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 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 Canadian foreign Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), directly owned by any US Borrower or any US Subsidiary to be subject at all times to a first priority, perfected Lien in favor of the Administrative US Collateral Agent (for the benefit of the Canadian Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative US Collateral Agent shall reasonably request. The Canadian Borrowers and each of their Canadian Subsidiaries that is a Loan Party will cause 100% of the issued and outstanding Equity Interests in each of its Canadian Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Canadian Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Canadian Collateral Agent shall reasonably request. Notwithstanding the foregoing, the Administrative Agent and the Canadian Administrative Agent recognize that the Borrowers do not plan to acquire all of the outstanding Equity Interests in the NewCo which will acquire all or substantially all of the Property of Project Caviar in connection with the Project Caviar Acquisition, and solely with respect to the Project Caviar Acquisition, the Borrowers shall only be required to pledge all of the issued and outstanding Equity Interests acquired by them or their Subsidiaries in connection with the Project Caviar Acquisition; provided, that such Equity Interests may in no event be less than 75% of all Equity Interests in such NewCo and provided further that such NewCo shall grant liens to the US Collateral Agent or the Canadian Collateral Agent (as applicable), for the benefit of the Agents, the Lenders, the Export-Related Lender and the Other Secured Parties, in any Property of such NewCo which constitutes Collateral, including any parcel of Real Property located in the U.S. or Canada and owned by such NewCo.
(ec) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative US Collateral Agent or the Canadian Collateral Agent (as applicable) 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 4.014.1, as applicable), which may be required by law or which US Collateral Agent or the Administrative Canadian Collateral Agent (as applicable) 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 to become a Loan Party and a Loan Guarantor and to grant Liens to the US Collateral Agent or the Canadian Collateral Agent (as applicable) on its assets and have the balance of its Equity Interests pledged to the US Collateral Agent or the Canadian Collateral Agent (as applicable).
(fd) If any material assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, including any Subsidiary which is a borrower under a Real Estate Loan Agreement Property or improvements thereto or any other interest therein) are acquired by the Borrowers or any Subsidiary that is a special purpose entity which has no material assets other than real property) are acquired by any Loan Party after the Effective Date (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement Agreements that become subject to the Lien in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) Security Agreements upon acquisition thereof), the applicable Borrower Representative will promptly notify the Administrative Agent, the Canadian Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent, the Canadian Administrative Agent or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative US Collateral Agent or the Canadian Collateral Agent (as applicable) 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.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Funding Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, each Loan Party the Company shall cause each of its Significant Domestic Subsidiaries (other than Immaterial Domestic Subsidiaries) Subsidiary and each Significant Canadian Subsidiary formed or acquired after the date of this Agreement in accordance with the terms of this Agreement to become a U.S. Loan Party by executing the Joinder Agreement set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Borrower or U.S. Loan Guarantor hereunderor, as specified by such Person at the time option of such joinderthe Company and subject to the consent of the US Administrative Agent in its Permitted Discretion, a Borrower, hereunder and (subject to the terms of this Section 5.13(a)) thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative AgentAgents, for the benefit of the Lender PartiesAdministrative Agents and the Lenders, in all personal any property of such Loan Party which constitutes Collateral. Notwithstanding the foregoing, (x) no Accounts, Inventory or WIP of any Significant Domestic Subsidiary or Significant Canadian Subsidiary that becomes a type Borrower hereunder after the Effective Date shall be eligible for inclusion in the US Borrowing Base, the Canadian Borrowing Base or the Aggregate Borrowing Base unless the Administrative Agents shall have conducted such audits, field examinations and appraisals as the Administrative Agents shall elect in their Permitted Discretion, and (y) any Canadian Subsidiary that is required to become a Loan Party shall only be encumbered pursuant to liable for, and any Liens granted by such Canadian Subsidiary in any Collateral owned by such Canadian Subsidiary shall only secure, the Collateral DocumentsCanadian Secured Obligations.
(b) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries (other than Immaterial Canadian Subsidiaries) formed or acquired after the date of this Agreement that is organized under the laws of Canada or any province thereof to become a Canadian Loan Party by executing a Joinder Agreement and to become party to a Canadian Guarantee that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in form and substance satisfactory to Administrative Agent) and a Canadian 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 a type required to be encumbered pursuant to the Collateral Documents, the foregoing to be in a form substantially similar to the 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.
(c) To secure the prompt payment and performance of all U.S. Secured Obligations, Holdings, each Domestic Subsidiary that is a U.S. Loan Party and each Canadian Cross-Border Loan Guarantor The Company will cause (i) 100% of the issued and outstanding Equity Interests of each of its direct and indirect Significant Domestic Subsidiary (other than an Immaterial Domestic Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no assets other than real property) that is formed or acquired after the Effective Date, (ii) 65% of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, and (iii) 100% of the non-voting Equity Interests of each of first-tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) that is formed or acquired after the Effective Date, to become subject to a first 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 within thirty (30) days of the formation or acquisition of such Subsidiary.
(d) To secure the prompt payment and performance of all Canadian Secured Obligations, Holdings and each Subsidiary that is a Canadian Loan Party will cause 100% of the issued and outstanding Equity Interests of each Canadian Subsidiary acquired after the Effective Date (other than an Immaterial Canadian Subsidiary), Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the US Administrative Agent (as security for the benefit of the Canadian Lender Parties) Secured Obligations pursuant to the terms and conditions of the Loan Documents or other security documents as the US Administrative Agent shall reasonably request, (ii) 100% of the issued and outstanding Equity Interests of the Canadian Borrower and of each other Significant Canadian Subsidiary to be subject at all times to a first priority perfected Lien in favor of the Canadian Administrative Agent as security for the Canadian Secured Obligations pursuant to the terms and conditions of the Loan Documents or other security documents as the Canadian Administrative Agent shall reasonably request, and (iii) 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 the Canadian Borrower to be subject at all times to a second priority, perfected Lien in favor of the US Administrative Agent as security for the Secured Obligations pursuant to the terms and conditions of the Loan Documents or other security documents as the US Administrative Agent shall reasonably request.
(ec) Without limiting the foregoing, each Loan Party will, and will cause each Significant Domestic Subsidiary and each Significant Canadian Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative 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, and fixture filings, mortgages, deeds of trust and, if reasonably requested by Administrative Agents, other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative 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 Documents, all at the expense of the Loan Parties.
(fd) If any assets constituting personal property of a type required to be encumbered under the Collateral Documents (other than equity of an Immaterial Domestic Subsidiary, an Immaterial Canadian Subsidiary, any Subsidiary which is a borrower under a Real Estate Loan Agreement or any other Subsidiary that is a special purpose entity which has no material assets other than (including any real property having a value individually in excess of $2,500,000, but excluding leased real property) are acquired by any Loan Party after the Effective Date (other than assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement Agreements that become subject to the Lien Liens in favor of the Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) Agents upon acquisition thereof), the Borrower Representative will promptly notify the Administrative Agent Agents and the Lenders thereof, and, if requested by the Administrative Agent Agents or the Required Lenders, the Borrowers will cause such assets to be subjected to a Lien in favor of Administrative Agent (for the benefit of the Lender Parties or the Canadian Lender Parties, as the case may be) securing the U.S. Secured Obligations and/or the Canadian Secured Obligations, as applicable, and will take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent Agents to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
Appears in 1 contract
Samples: Credit Agreement (Bowne & Co Inc)
