Additional Collateral. Each Significant Subsidiary which is formed or acquired after the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (i) execute and deliver to the Administrative Agent for the benefit of the Lenders Additional Collateral Documents in form and substance satisfactory to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agent.
Appears in 1 contract
Additional Collateral. Each Significant Subsidiary (a) The Borrower shall have the right subject to the terms hereof to permit Property Owner to add to the collateral for the Mortgage Loan any other Real Estate that is owned by Property Owner and which is formed not security for any other Indebtedness. Such addition shall be completed by the delivery to the Agent of each of the Eligible Real Estate Qualification Documents. Notwithstanding the foregoing, the addition of such collateral for the Mortgage Loan shall not increase the Designated Collateral Value or acquired after the Additional Collateral Trigger Date and amounts available to be borrowed by the Borrower unless each Subsidiary which becomes a Significant Subsidiary after of the Additional Collateral Trigger Date shall: following conditions shall be satisfied:
(i) execute if such proposed collateral is Real Estate, such Real Estate shall be Eligible Real Estate;
(ii) no Default or Event of Default shall have occurred or exist or would occur or exist if such asset were included within the Collateral and deliver the requested Loan fully funded;
(iii) the Borrower shall have delivered to the Administrative Agent for all Eligible Real Estate Qualification Documents or other instruments, documents or agreements as the benefit Agent shall deem necessary or desirable, all of the Lenders Additional Collateral Documents which instruments, documents or agreements shall be in form and substance satisfactory to the Administrative Agent in its sole discretion;
(iv) the Agent, including on behalf of the Banks, shall have received any other appraisals, surveys, rent rolls, environmental reports, title insurance reports, certificates, opinions or other information or documentation with respect to such Real Estate as the Agent, in its sole discretion, shall deem necessary or desirable; and
(v) the Mortgagee shall have accepted such Real Estate as a Mortgaged Property. The Borrower acknowledges that the decision of the Majority Banks to grant or withhold their consent to the acceptance of an additional Mortgaged Property under this Section 5.4 shall be based entirely on such factors as the Majority Banks deem relevant in their sole discretion, including, without limitation Security Agreementslimitation, Patent, Trademark and Copyright Security Agreementsthose enumerated in clauses (i) through (v) hereinabove, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to consent may be granted or withheld solely at the discretion of the Administrative Agent Majority Banks; provided, however, that if the such Real Estate is a Stabilized Property, acceptance of such Real Estate shall be subject only to exclude any the satisfaction of the following assets from the Additional Collateral in the event that the taking terms of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity AgreementsSection 5.4(a)(ii), (iii) Landlord Waivers), and (iv) title commitments or title reports and (v).
(b) In connection with respect each such addition, the Borrower shall pay to any Property the Agent the reasonable out-of-pocket costs and expenses (including reasonable attorney's fees and expenses) of the Agent in connection with the addition of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear property.
(c) In no event shall the acquisition cost of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved Mortgaged Property or the equity interests of Property Owner in writing by the Administrative AgentMezzanine Property exceed $40,000,000.00.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Wellsford Real Properties Inc)
Additional Collateral. Each Significant Subsidiary which is formed or acquired after the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (ia) execute and deliver In addition to the Administrative Collateral granted by the Issuers and the Guarantors to the Collateral Agent for the benefit of the Lenders Additional Collateral Documents in form Holders on the Issue Date, the Issuers and substance satisfactory to the Administrative AgentGuarantors will, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following circumstances described in this Section 4.22, grant additional collateral to secure the obligations under the Notes and Guarantees consisting of other property and assets of the Issuers and the Guarantors not then constituting Collateral hereunder, other than Excluded Assets (each right, title or interest in or to such Significant Subsidiary property referred to herein as “Additional Collateral”).
(b) On January 1st of each calendar year following the Issue Date, the Issuers shall present to the Collateral Agent an itemized valuation of the Collateral pledged to secure its obligations hereunder in reasonable detail showing separately the value of all interests in real property and other property incidental to the activity of holding real property (within the meaning of Treasury Regulation Section 1.465-27(b)(2)(i)) and the value of all other property pledged as Collateral as of such date (the “Collateral Valuation”). The Collateral Valuation shall be prepared and certified by a nationally recognized independent appraisal or investment banking firm as of a date no more than 45 days prior to such delivery to the Collateral Agent. Upon delivery of the Collateral Valuation, the Company shall also deliver a certified resolution of the Board of Directors of TER determining, in its reasonable discretion after consultation with counsel, the amount, if any, of the Additional Collateral that shall be pledged to secure the Issuers’ and Guarantors’ obligations under the Notes and Guarantees hereunder. Such determination shall be made in good faith by the Board of Directors in order to pledge all or a portion of the Additional Collateral to the extent permissible under the provisions of Treasury Regulation Section 1.465-27. Such certified resolution, Collateral Valuation and the calculation of Additional Collateral permitted to be pledged to secure the Note Obligations hereunder shall be set forth in an Officers’ Certificate and delivered to the Trustee and Collateral Agent. In the event that any Additional Collateral is determined to be required to be pledged as Collateral pursuant to this Section 4.22(b), the Company and Collateral Agent shall execute and deliver all applicable amendments, addendums and other documents under the Collateral Documents to effect the pledge of and perfection of a Lien on the Additional Collateral, subject to the discretion prior Liens on the assets of the Administrative Agent to exclude any Issuers and Guarantors securing Priority Lien Debt and other Permitted Prior Liens, within 90 days after the delivery of the following assets from Collateral Valuation. If the granting of a security interest in Additional Collateral requires the consent of a third party, the Company will use its commercially reasonable efforts to obtain such consent with respect to the Lien for the benefit of the Collateral Agent. All or any portion of the Additional Collateral that is hereafter pledged to secure the obligations under the Notes and Guarantees hereunder shall thereafter be “Collateral” for all purposes under this Indenture and the Collateral Documents, in each case without the need to otherwise amend the Indenture, except as determined by the Issuers and the Collateral Agent.
(c) In the event that an Issuer or any Guarantor (other than any Guarantor that is treated as a corporation for U.S. federal income tax purposes) acquires any interest in any parcel of real property after the Issue Date, then the Issuer or such Guarantor shall enter into a Mortgage in substantially the form of those Mortgages attached hereto as Exhibits E, F and G, pledging such real property, together with all property incidental thereto (within the meaning of Treasury Regulation Section 1.465-27), as Additional Collateral to secure the Note Obligations hereunder.
(d) In the event that the taking Qualified Portion of Liens upon such assets the Note Obligations is impracticalset to zero pursuant to Section 4.26(a) or (b), prohibited by law or commercially unreasonable in then the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply Issuers and the Guarantors shall enter into amendments to the Security Agreement and/or enter into new security agreements, mortgages or such other material contractsagreements as is necessary or appropriate to pledge all of the property (both real and personal, coal reserves, mineral rights, tangible and intangible) then held by the NRP Interests, Issuers or any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary the Guarantors as Collateral to secure the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant SubsidiaryNote Obligations hereunder, including opinions of local counsel in each applicable jurisdictionany after-acquired property, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agentother than Excluded Assets.
Appears in 1 contract
Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Additional Collateral. Each Significant Subsidiary which is formed (a) Mortgagor acknowledges and agrees that the Indebtedness and all other obligations hereunder (such Indebtedness and other obligations collectively called the “Obligations”) are secured by the Premises and various other collateral including, without limitation, at the time of execution of this Mortgage certain personal property of Mortgagor and other parties described in the Loan Documents. The Mortgagor specifically acknowledges and agrees that the Premises, in and of itself, if foreclosed or acquired after realized upon may not be sufficient to satisfy the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after outstanding amount of the Additional Collateral Trigger Date shall: (i) execute and deliver Obligations. Accordingly, Mortgagor acknowledges that, to the Administrative Agent fullest extent permitted by applicable law, it is in the Mortgagor’s contemplation that the other collateral pledged to secure the Obligations may be pursued by the Mortgagee in separate proceedings in the various states, counties and other countries where such collateral may be located and additionally that Mortgagor and other parties liable for payment of the Obligations will remain liable for any deficiency judgments in addition to any amounts the Mortgagee may realize on sales of other property or any other collateral given as security for the benefit Obligations except as otherwise set forth in this Mortgage. Specifically, and without limitation of the Lenders Additional foregoing, it is agreed that it is the intent of the parties hereto that in the event of a foreclosure of this Mortgage, the Obligations shall not be deemed merged into any judgment of foreclosure, but rather shall remain outstanding. It is the further intent and understanding of the parties that the Mortgagee, following an Event of Default, may, to the fullest extent permitted by applicable law, pursue all of its Collateral with the Obligations remaining outstanding and in full force and effect notwithstanding any judgment of foreclosure or any other judgment which the Mortgagee may obtain.
(b) Mortgagor acknowledges and agrees that the Premises and the other collateral which may from time to time be encumbered by the other Loan Documents may be located in more than one state, county or country and therefore Mortgagor, to the fullest extent permitted by applicable law, waives and relinquishes any and all rights it may have, whether at law or equity, to require the Mortgagee to proceed to enforce or exercise any rights, powers and remedies it may have under the Loan Documents in form any particular manner, in any particular order, or in any particular state or other jurisdiction. Furthermore, Mortgagor acknowledges and substance satisfactory agrees, to the Administrative Agentfullest extent permitted by applicable law, including without limitation Security Agreementsthat the Mortgagee shall be allowed to enforce payment and performance of the Obligations and to exercise all rights and powers provided under this Mortgage, Patentor the other Loan Documents or under any provision of law, Trademark and Copyright Security Agreementsby one or more proceedings, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Lienswhether contemporaneous, consecutive or both) in favor any one or more states, counties or countries in which the security is located. To the fullest extent permitted by applicable law, neither the acceptance of this Mortgage or any Loan Document nor the enforcement in one state, county or country, whether by court action, power of sale, or otherwise, shall prejudice or in any way limit or preclude enforcement of such documents through one or more additional proceedings, in that state or in any other state, county or country.
(c) To the fullest extent permitted by applicable law, Mortgagor further agrees that any particular remedy or proceeding, including, without limitation, foreclosure through court action (in a state or federal court) or power of sale, may be brought and prosecuted in the local or federal courts of any one or more states as to all or any part of the Lenders in Premises or the following assets collateral encumbered by the Loan Documents, wherever located, without regard to the fact that any one or more prior or contemporaneous proceedings have been situated elsewhere with respect to the same or any other part of the Premises and the other collateral encumbered by the Loan Documents.
(d) To the fullest extent permitted by applicable law, Mortgagee may resort to any other security held by the Mortgagee for the payment of the Obligations in such Significant Subsidiary order and manner as the Mortgagee may elect.
(subject e) To the fullest extent permitted by applicable law, notwithstanding anything contained herein to the discretion contrary, Mortgagee shall be under no duty to Mortgagor or others, including, without limitation, the holder of any junior, senior or subordinate mortgage, deed of trust, or deed to secure debt on the Administrative Agent Premises or any part thereof or on any other security held by Mortgagee, to exclude exercise or exhaust all or any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary powers and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect remedies available to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative AgentMortgagee.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Industrial Income Trust Inc.)
Additional Collateral. Each Significant Subsidiary which is formed (a) Mortgagor acknowledges and agrees that the Indebtedness and all other obligations hereunder (such Indebtedness and other obligations collectively called the "Obligations") are secured by the Premises and various other collateral including, without limitation, at the time of execution of this Mortgage certain personal property of Mortgagor described in the Loan Documents. The Mortgagor specifically acknowledges and agrees that the Premises, in and of itself, if foreclosed or acquired after realized upon would not be sufficient to satisfy the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after outstanding amount of the Additional Collateral Trigger Date shall: (i) execute and deliver Obligations. Accordingly, Mortgagor acknowledges that, to the Administrative Agent fullest extent permitted by applicable law, it is in the Mortgagor's contemplation that the other collateral pledged to secure the Obligations may be pursued by the Mortgagee in separate proceedings in the various states, counties and other countries where such collateral may be located and additionally that Mortgagor and other parties liable for payment of the Obligations will remain liable for any deficiency judgments in addition to any amounts the Mortgagee may realize on sales of other property or any other collateral given as security for the benefit Obligations except as otherwise set forth in this Mortgage. Specifically, and without limitation of the Lenders Additional Collateral Documents in form and substance satisfactory to foregoing, it is agreed that it is the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor intent of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral parties hereto that in the event of a foreclosure of this Mortgage, the Obligations shall not be deemed merged into any judgment of foreclosure, but rather shall remain outstanding. It is the further intent and understanding of the parties that the taking Mortgagee, following an Event of Liens upon such assets is impracticalDefault, prohibited may, to the fullest extent permitted by applicable law, pursue all of its Collateral with the Obligations remaining outstanding and in full force and effect notwithstanding any judgment of foreclosure or any other judgment which the Mortgagee may obtain.
(b) The Grantor acknowledges and agrees that the Premises and the other collateral which may from time to time be encumbered by the other Loan Documents may be located in more than one state, county or country and therefore Mortgagor, to the fullest extent permitted by applicable law, waives and relinquishes any and all rights it may have, whether at law or commercially unreasonable equity, to require the Mortgagee to proceed to enforce or exercise any rights, powers and remedies it may have under the Loan Documents in any particular manner, in any particular order, or in any particular state or other jurisdiction. Furthermore, Mortgagor acknowledges and agrees, to the fullest extent permitted by applicable law, that the Mortgagee shall be allowed to enforce payment and performance of the Obligations and to exercise all rights and powers provided under this Mortgage, or the other Loan Documents or under any provision of law, by one or more proceedings, (whether contemporaneous, consecutive or both) in any one or more states, counties or countries in which the security is located. To the fullest extent permitted by applicable law, neither the acceptance of this Mortgage or any Loan Document nor the enforcement in one state, county or country, whether by court action, power of sale, or otherwise, shall prejudice or in any way limit or preclude enforcement of such documents through one or more additional proceedings, in that state or in any other state, county or country.
(c) To the fullest extent permitted by applicable law, Mortgagor further agrees that any particular remedy or proceeding, including, without limitation, foreclosure through court action (in a state or federal court) or power of sale, may be brought and prosecuted in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property local or federal courts of any such Significant Subsidiary and one or more states as to all or any other assets part of the Premises or the collateral encumbered by the Loan Documents, wherever located, without regard to the fact that any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, one or more prior or contemporaneous proceedings have been situation elsewhere with respect to such Significant Subsidiary, including opinions the same or any other part of local counsel in each applicable jurisdiction, as such opinions may be reasonably required the Premises and the other collateral encumbered by the Administrative Agent and with such opinions to be satisfactory in formLoan Documents.
(d) To the fullest extent permitted by applicable law, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect Mortgagee may resort to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing other security held by the Administrative AgentMortgagee for the payment of the Obligations in such order and manner as the Mortgagee may elect.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Great Lakes Reit)
Additional Collateral. Each Significant Subsidiary which is formed or acquired after (a) The Seller may, from time to time, deliver to the Custodian, additional Mortgage Loans (the "Additional Collateral") as an addition to the --------------------- Purchased Mortgage Loans already held by the Custodian with respect to a Transaction. In such event, the Seller shall deliver to the Custodian the Mortgage Files for the Additional Collateral Trigger Date together with a Custodial Delivery and each Subsidiary which becomes Mortgage Loan Schedule, with a Significant Subsidiary after copy to the Registered Holder(s) and, if Buyer is not the applicable Registered Holder at such time, the Buyer, stating that the Additional Collateral Trigger Date shall: is being delivered with respect to an identified Transaction. It is expressly understood and agreed that the Custodian shall have no duty to perform any valuation of collateral and shall have no responsibility to ascertain the adequacy of any Additional Collateral.
(ib) execute and The Custodian shall deliver to the Administrative Agent for related Registered Holder (via fax with the benefit original to follow the next Business Day) no later than 1 p.m. (New York City time) one (1) Business Day after receipt of such Additional Collateral from the Seller, a Trust Receipt and Mortgage Loan Schedule and exception report that reflects the delivery of the Lenders Additional Collateral Documents in form and substance satisfactory to the Administrative AgentCollateral; provided that, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking Custodian does not receive the items required to be delivered pursuant to Section 7(a) above by no later than 9:30 a.m. (California time) on the date of Liens upon delivery, then the Custodian shall deliver such assets is impractical, prohibited by law or commercially unreasonable in a Trust Receipt and Mortgage Loan Schedule within two (2) Business Days after the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rightsdate of delivery. In issuing such Mortgage Loan Schedule and Trust Receipt, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary Custodian shall employ the same procedures as set forth in Section 4 in reviewing the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative AgentFiles.
Appears in 1 contract
Additional Collateral. Each Significant Subsidiary which (a) If any Additional Collateral shall be required or is formed or acquired after contemplated to be delivered by Borrowers pursuant to any provision of this Agreement, then Borrowers shall either (i) if the form of such Additional Collateral shall be cash, pay to Agent for deposit in the Additional Collateral Trigger Date Account, (ii) if the form of such Additional Collateral shall be a Collateral Letter of Credit, deliver to Agent such Collateral Letter of Credit, or (iii) if the form of such Additional Collateral shall be any other collateral acceptable to Agent, deliver to Agent such other collateral in form and content acceptable to Agent with such other documents as Agent shall require in order to grant Agent a first priority perfected security interest therein, if applicable, in each Subsidiary which becomes a Significant Subsidiary after case, in such amounts or the liquidation value being, as required or contemplated pursuant to Sections 4.04(a), 5.23(b) and 5.24(b) hereof.
(b) Agent shall deposit all sums delivered to Agent for deposit in the Additional Collateral Trigger Date shall: Account into an account or subaccount of Agent or, at Agent’s election, a bank or other financial institution approved by Agent (i) the “Additional Collateral Account”). Each Borrower hereby grants to Agent for itself and on behalf of Lenders a security interest in all rights of such Borrower in and to the Additional Collateral Account and all sums on deposit therein as additional security for the Obligations. All sums deposited in the Additional Collateral Account shall be released and applied in accordance with the terms of this Agreement. If held by Agent, the credit balance in the Additional Collateral Account may be commingled with the general funds of Agent and shall bear interest at a rate per annum which is substantially similar to interest rates offered by Agent to similarly situated Borrowers for comparable deposits held in similar accounts. If not held by Agent, any such Borrower shall cause the bank or financial institution at which the Additional Collateral Account is held to execute and deliver to Agent an Account Agreement with respect to the Administrative Agent for the benefit of the Lenders Additional Collateral Documents in form Account, Borrowers shall pay all fees and substance satisfactory to costs with respect thereto and no Borrower shall close such account without obtaining the Administrative prior consent of Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of . To the Lenders extent that any sums on deposit in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets Additional Collateral Account are held in a time deposit account and are withdrawn from the Additional Collateral Account prior to the maturity of any time deposit, whether at the direction of a Borrower or by Agent in connection with the exercise by Agent of Agent’s rights and remedies hereunder, neither Agent nor Lenders shall be liable for any interest forfeited or otherwise foregone by Borrowers as the result of such withdrawal. Any income from such investments will be deposited to, and become a portion of, the Additional Collateral Account. Agent shall have sole dominion and control over the Additional Collateral Account.
(c) In addition to all other rights and remedies available to Agent and Lenders, upon the occurrence and during the continuance of any Event of Default, Agent shall have the right without notice to any Borrower or any other Person to apply the Additional Collateral and make drawings under any Collateral Letter of Credit for the payment of any and all Obligations that are due and payable, with such amounts to be applied as set forth in Section 2.16 hereof and otherwise in accordance with this Agreement. Agent may also draw on any such Collateral Letter of Credit in the event that the taking issuer thereof notifies Agent that such Collateral Letter of Liens upon Credit shall be not renewed, or shall be revoked or otherwise terminated, in which event the proceeds thereof shall be retained, held and applied by Agent as Additional Collateral in accordance with this Section 2.20. If (x) any Collateral Letter of Credit expires or is revoked, unrenewed or otherwise not in full force and Agent shall not have fully drawn the amount of such assets Collateral Letter of Credit prior to the date that it is impracticalno longer in effect, (y) the issuer thereof declares its inability to pay its debts on time, is the subject of any bankruptcy, insolvency, reorganization, receivership, dissolution or similar proceedings, is prohibited by law or commercially unreasonable court order from doing business in the Administrative State of New York or the state of its organization/incorporation or from otherwise performing its obligations under such Collateral Letter of Credit or other financial obligations, or has its credit rating downgraded below its rating as of the date such Collateral Letter of Credit is issued by S&P, Mxxxx’x, Fitch or another financial services rating agency (or below a rating of “BBB+” (or the equivalent) by S&P, Mxxxx’x or Fitch in the event the issuer is KeyBank) or (z) the issuer thereof fails to pay upon or otherwise refuses or is unable to honor Agent's judgment): accounts’s draft within the time period set forth in such Collateral Letter of Credit, inventoryBorrowers shall, furniturewithin five (5) Business Days after notice from Agent, fixturesdeliver to Agent substitute Additional Collateral. If the outstanding principal amount of the Loans, improvementstogether with all Interest and other sums due and payable in connection therewith and all other outstanding Obligations then due or required to be performed, as-extracted collateralshall have been indefeasibly repaid or performed, general intangiblesas applicable, coal supply agreementsby the Credit Parties in full, other material contractsall of the Commitments have expired or been terminated and all Lender Interest Rate Protection Agreements have been terminated, coal reservesthen Agent shall return to Borrowers any Additional Collateral or Collateral Letter of Credit to the extent then in possession or control of Agent.
(d) If, mineral rights, the NRP Interests, any material Property as of any Testing Determination Date following the date on which Borrowers shall have delivered any Additional Collateral pursuant to Sections 4.03(a), 5.23 or 5.24 hereof, (i) the Debt Service Coverage Ratio calculated as of the calendar quarter ending on such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may requestTesting Determination Date shall be greater than 1.35:1.0, (ii) deliver opinions the Debt Service Coverage Ratio calculated as of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may the calendar quarter ending on the immediately preceding Testing Determination Date shall be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreementsgreater than 1.35:1.0, (iii) Landlord Waiversthe aggregate outstanding principal balance of the Loans is less than or equal to the Borrowing Base Loan Amount (without giving effect to the Additional Collateral Value) as of such Testing Determination Date and as of the immediately preceding Testing Determination Date, and (iv) title commitments no Default or title reports with respect Event of Default shall have occurred and be continuing, then, Agent shall upon request of Borrowers promptly (x) return any Collateral Letter of Credit, (y) disburse into the Operating Account all of the unapplied funds in the Additional Collateral Account or (z) return to Borrowers any Property other collateral, or the liquidated cash proceeds thereof, if applicable, delivered by Borrowers to Agent as Additional Collateral which shall not have been in the form of such Significant Subsidiary which is subject cash or a Collateral Letter of Credit.
(e) Other than as expressly set forth in this Section 2.20, Borrowers shall have no right to any Mortgage evidencing that such Property is free and clear receive a return of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative AgentAdditional Collateral.
Appears in 1 contract
Samples: Credit Agreement (Hines Real Estate Investment Trust Inc)
Additional Collateral. Each Significant (a) The Obligors or any Subsidiary which is formed or acquired after of the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: Parent Guarantor (i) execute and deliver shall grant Liens on Additional Collateral to the Administrative Agent for the benefit of the Lenders Additional Collateral Documents in form and substance satisfactory extent required pursuant to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreementsterms of this Indenture, and Mortgages necessary (ii) shall, in their sole or absolute discretion, be permitted to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following Liens on other assets of the Parent Guarantor or any of its Subsidiaries, in each case to secure the Notes and the Note Guarantees and any other Indebtedness that is secured by the Shared Collateral as permitted by Section 4.10; provided that, if a Subsidiary of the Parent Guarantor grants Liens on Additional Collateral or any of its assets, such Significant Subsidiary shall promptly become a Guarantor and a guarantor of each other Series of Secured Debt in accordance with the terms of the applicable Secured Debt Document. If the Obligors grant any Additional Collateral (subject other than Non-Shared Collateral) to secure such other Indebtedness that is secured by the Shared Collateral, such Additional Collateral shall also secure the Notes and the Note Guarantees on the same basis as the Shared Collateral securing the Notes and the Note Guarantees on the Closing Date pursuant to the discretion terms of the Administrative Agent to exclude Intercreditor Agreement.
(b) If the Parent Guarantor or any of its Subsidiaries creates or permits to subsist any intercompany Indebtedness between (i) the following assets from Parent Guarantor and any of its Subsidiaries that is not an Obligor, or (ii) between Subsidiaries of the Additional Collateral Parent Guarantor where one such Subsidiary is not an Obligor, under which, in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property respect of any such Significant Indebtedness (taken individually) is of an aggregate principal amount in excess of US$20.0 million, then the Parent Guarantor or the relevant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect shall be required to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waiversgrant promptly, and in any event within 30 calendar days, a Lien over the receivables under such intercompany Indebtedness (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agent“Additional Intercompany Indebtedness Collateral”).
Appears in 1 contract
Samples: Indenture (Azul Sa)
Additional Collateral. Each Significant Subsidiary Borrower's performance under the Note, as modified by the Note Modification, shall be further secured pursuant to Borrower's collateral assignment to Lender, and Borrower hereby grants a security interest to Lender in and to, all of Borrower's right, title, and interest in and to all of Borrower's right to receive any amounts under those certain Vacation Partners Purchase Agreements (Nevada) listed on Exhibit "B" attached hereto and incorporated herein by reference, which is formed or acquired after evidence amounts owed to Borrower from the buyers' named therein in the aggregate principal amount as of the date hereof of approximately Seventy-Nine Thousand Dollars ($79,000.00) (collectively, the "Additional Collateral Agreements"). Said buyers' performance under the Additional Collateral Trigger Date Agreements are secured by those certain Deeds of Trust which name Borrower as beneficiary, and each Subsidiary which becomes a Significant Subsidiary after are recorded in the county of Xxxxx, state of Nevada, encumbering certain Timeshare Interests purchased by the trustors under such Deeds of Trust (collectively, the "Additional Collateral Deeds of Trust"). The assignment of the Additional Collateral Trigger Date shall: Agreements shall be evidenced by Borrower's execution and delivery to Lender concurrently herewith of an Assignment of Purchase Agreements in the form of that attached hereto as Exhibit "C" and incorporated herein by this reference (i) the "Additional Collateral Agreements Assignment"). Concurrently herewith, Borrower shall also execute and acknowledge and deliver to Lender an Assignment of Deeds of Trust in the form of that attached hereto as Exhibit "D" assigning to Lender all of Borrower's beneficial interest under the Additional Collateral Deeds of Trust (the "Additional Collateral Deeds of Trust Assignment"). Concurrently herewith, Borrower shall also execute and deliver to the Administrative Agent for the benefit of the Lenders Additional Collateral Documents in form and substance satisfactory Lender a UCC-2 Amendment to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders Financing Statement in the following assets form of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary attached hereto as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agent.Exhibit "E."
Appears in 1 contract
Samples: Loan Agreement (Reynolds Debbie Hotel & Casino Inc)
Additional Collateral. Each Significant Provided no Default or Event of Default exists, the Borrower shall have the right subject to the satisfaction by the Borrower of the conditions set forth in this §5.3 and §5.4, to add Potential Collateral and the related Borrowing Base Property to the calculation of Borrowing Base Availability. In the event the Borrower desires to add additional Potential Collateral and the related Borrowing Base Property to the Borrowing Base Availability as aforesaid, the Borrower shall provide written notice to the Agent of such request at least ten (10) days prior to the date that Borrower desires to add additional Potential Collateral and the related Borrowing Base Property to the Borrowing Base Availability, which notice shall include the Adjusted Pro Forma Net Operating Income and the NAV Valuation attributable to such Real Estate and be accompanied by the rent roll for such Real Estate. No Potential Collateral and the related Borrowing Base Property shall be included in the calculation of the Borrowing Base Availability unless and until the following conditions precedent shall have been satisfied as determined by Agent (or as required by this Agreement, the Required Lenders):
(a) such Potential Collateral shall be Eligible Real Estate;
(b) such Real Estate shall be owned (or leased to a Subsidiary Guarantor as lessee under a Ground Lease) by a Wholly-Owned Subsidiary of the Borrower, and said Wholly-Owned Subsidiary, and any other Wholly-Owned Subsidiary of Borrower owning or leasing an interest therein, shall have executed a Joinder Agreement and satisfied the conditions of §5.4;
(c) prior to or contemporaneously with such addition, the Borrower shall have submitted to the Agent a Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4 and a Borrowing Base Certificate, both prepared on a pro forma basis and adjusted to give effect to such addition, and shall certify that after giving effect to such addition, no Default or Event of Default shall exist;
(d) the Borrower and any Wholly-Owned Subsidiary of Borrower owning a direct or indirect interest (or Equity Interest) therein, as applicable, which is formed the direct or acquired after indirect owner and/or lessee of the Additional Collateral Trigger Date Real Estate, as applicable, shall have executed and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (i) execute and deliver delivered to the Administrative Agent for the benefit all Borrowing Base Qualification Documents, all of the Lenders Additional Collateral Documents which instruments, documents or agreements shall be in form and substance reasonably satisfactory to the Administrative Agent;
(e) after giving effect to the inclusion of such Eligible Real Estate, including without limitation Security Agreementseach of the representations and warranties made by or on behalf of the Borrower or the Guarantors or any of their respective Subsidiaries contained in this Agreement, Patentthe other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects both as of the date of which it was made and shall also be true as of the time of the addition of such Borrowing Base Property with the same effect as if made at and as of that time, Trademark except to the extent of changes resulting from transactions permitted by the Loan Documents (it being understood and Copyright Security Agreementsagreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date), and Mortgages necessary to grant first priority perfected liens no Default of Event of Default shall have occurred and security interests (subject only to Permitted Liens) in favor be continuing and the Agent shall have received a certificate of the Lenders in Borrower to such effect; and
(f) the following assets provisions of §7.19 shall be satisfied; and the Borrower shall have delivered to the Agent a certification of the such Significant Subsidiary (subject to the discretion satisfaction of the Administrative Agent terms of this §5.3, which certificate shall be in form and substance reasonably satisfactory to exclude any of Agent. Notwithstanding the following assets from the Additional Collateral foregoing, in the event that the taking of Liens upon such assets is impracticalReal Estate does not qualify as Eligible Real Estate, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material such Real Estate shall be included as a Borrowing Base Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary so long as the Administrative Agent in its sole discretion may request, (ii) deliver opinions shall have received the prior written consent of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance the Required Lenders to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property inclusion of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions Real Estate as may be approved in writing by the Administrative Agenta Borrowing Base Property.
Appears in 1 contract
Samples: Credit Agreement (Modiv Inc.)
Additional Collateral. Each Significant Subsidiary which is formed or acquired after In addition to the Additional Collateral Trigger Date conditions set forth in Section 7 hereof, as a condition to the Applicable Percent becoming fifty-five percent (55%) as contemplated in Section 2.1(b) hereof the Borrower shall obtain the written consent of the Lender thereto and each Subsidiary which becomes a Significant Subsidiary after shall satify the Additional Collateral Trigger Date shall: following:
(ia) The Borrower shall duly execute and deliver to the Administrative Agent for Lender mortgages or deeds of trust (each such mortgage or deed of trust, as it may be amended, modified or supplemented from time to time in accordance with its terms, a "Mortgage") in respect of real property owned by the benefit of Borrower set forth on Schedule 6 hereto (such real property, the Lenders Additional "Mortgage Collateral") so as to create in the Lender's favor, upon recordation thereof, a valid, perfected and enforceable first priority mortgage and lien on the Mortgage Collateral Documents and all improvements thereon or therein, such Mortgages to be in form and substance satisfactory to the Administrative AgentLender.
(b) The Borrower shall cause the Mortgages to be duly recorded in the appropriate recording office or offices and shall pay all fees and taxes payable in connection therewith.
(c) The Borrower shall furnish to the Lender, including without limitation Security Agreementsat the Borrower's expense, Patentone or more policies of mortgagee title insurance, Trademark in form, substance and Copyright Security Agreementsamount satisfactory to the Lender, insuring that each of the Mortgages is a valid and Mortgages necessary to grant perfected first priority perfected liens mortgage and security interests (subject only to Permitted Liens) lien in favor of the Lenders Lender on the interest of the Borrower in the following assets real property and improvements described therein, and that the Borrower has good and marketable title thereto, issued by a title insurance company reasonably satisfactory to the Lender, together with satisfactory evidence that all title insurance premiums therefor have been fully paid. The Borrower shall furnish to the Lender certified surveys of real property and such legal opinions, environmental questionnaires, certificates, agreements and documents as the such Significant Subsidiary (Lender may reasonably request with respect to the Mortgages and the Mortgage Collateral. The Borrower shall additionally provide to the Lender with respect to any real property to be subject to the discretion of the Administrative Agent a Mortgage on or prior to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impracticalMortgage such appraisals of such real property as shall be requested by the Lender or required under applicable law, prohibited by law or commercially unreasonable including, without limitation, the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended (FIRREA).
(d) The Borrower shall duly execute and deliver to the Lender a pledge agreement, in form and substance satisfactory to the Lender, pursuant to which the Borrower shall grant to the Lender a valid, perfected and enforceable first priority security interest in the Administrative Agent's judgment): accountspromissory note dated September 26, inventory1995 by Kmart to the order of the Borrower in the original principal amount of $15,800,000. The Borrower shall deliver such promissory note to the Lender duly endorsed to the order of the Lender in a manner satisfactory to the Lender. The Borrower shall furnish to the Lender such legal opinions, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary agreements and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, documents with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, pledge agreement and promissory note as such opinions the Lender may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, request.
(iie) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of The Lender shall receive any and all defects consents and encumbrances whatsoever approvals, in form and substance satisfactory to the Lender, as are necessary to permit the granting of the first priority perfected security interests and liens contemplated under this Section 6 or to avoid the occurrence of a default under any agreement or document to which the Borrower is subject only to such exceptions as a party or by which it or any of its properties may be approved in writing by bound, including, without limitation, the Administrative AgentBorrowers 14% debentures due January 1, 1996.
Appears in 1 contract
Additional Collateral. Each Significant Subsidiary which is formed or acquired after Any Grantor may elect at any time, without the Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (i) execute and deliver to the Administrative Agent for the benefit consent of the Lenders Additional Collateral Documents in form and substance satisfactory Agent or any Lender, to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion Lien of this Slot Security Agreement any Additional Pledged Slots or Additional Pledged Gate Leaseholds subject to the Administrative Agent to exclude any delivery of the following assets from documents, satisfaction of the following conditions precedent, and at no cost to the Collateral Agent or any Secured Party:
(a) an Slot Security Supplement substantially in the form of Exhibit C hereto duly executed by such Grantor, which the Collateral Agent hereby agrees to countersign, (A) identifying, as applicable, the Additional Collateral in Pledged Slots or Additional Pledged Gate Leaseholds and (B) amending or supplementing Schedules II through IV to the event that extent necessary to describe any such Additional Pledged Slots or Additional Pledged Gate Leaseholds, as applicable, or otherwise amending or supplementing such schedules to the taking extent necessary to give effect to this Section 31; and
(b) financing statements or amendments to financing statements describing such Additional Pledged Slots or Additional Pledged Gate Leaseholds, as applicable. For all purposes hereof, upon the attachment of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rightsLien of this Slot Security Agreement thereto, the NRP InterestsAdditional Pledged Slots or Additional Pledged Gate Leaseholds, any material Property if any, shall become part of any the Collateral, all such Significant Subsidiary and any other assets of any such Significant Subsidiary Additional Pledged Slots shall be deemed “Pledged Slots” as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any defined herein and all defects and encumbrances whatsoever and is subject only to such exceptions Additional Pledged Gate Leaseholds shall be deemed “Pledged Gate Leaseholds” as may be approved in writing by the Administrative Agentdefined herein.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Airlines Inc)
Additional Collateral. Each Significant Subsidiary which is formed If and to the extent Borrower receives or acquired after takes title to units of ownership in Facility Tenant at any time during Loan Term, Borrower agrees that such units of ownership in Facility Tenant shall become additional collateral for the Loan. To that end, as additional consideration for Lender’s execution of this Agreement, Borrower hereby GRANTS, BARGAINS, CONVEYS, ASSIGNS, TRANSFERS, and SETS OVER unto Lender a first and prior security interest in all of Borrower’s right, title, and interest in, to and under all rights Borrower has or may in the future obtain by virtue of the acquisition by Borrower of units of ownership in Facility Tenant (the “Additional Collateral”). The Additional Collateral Trigger Date and each Subsidiary which becomes a Significant Subsidiary after shall be deemed part of the Additional Collateral Trigger Date shall: Mortgaged Property (i) execute and as defined in the Deed of Trust). Borrower shall deliver to the Administrative Agent for the benefit of the Lenders Additional Collateral Documents Lender, in form and substance satisfactory to the Administrative AgentLender, including without limitation Security Agreementssuch financing statements and such further assurances as Lender may, Patentfrom time to time, Trademark and Copyright Security Agreementsreasonably consider necessary to create, perfect, and Mortgages necessary preserve Lender’s security interest herein granted, and Lender may cause such statements and assurances to grant first priority perfected liens be recorded and filed, at such times and places as may be required or permitted by law to create, perfect, and preserve such security interests (subject only interest. Borrower hereby authorizes Lender to Permitted Liens) in favor prepare and file new financing statements, financing statement amendments, and financing statement continuations that describe all or any portion of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waiverscollateral thereunder, and (iv) title commitments Lender may file such statements without any signature of Borrower or title reports with respect to any Property of a representative of Borrower appearing thereon, where such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing filings are permitted by the Administrative Agentapplicable Legal Requirements.
Appears in 1 contract
Additional Collateral. Each Significant Subsidiary which is formed or acquired after In consideration of Agent's waiver of Borrower's default of the covenant provided for in Section 6.9(d) of the Credit Agreement and in consideration of the modifications contained herein, pursuant to that certain Security Agreement (the "Additional Collateral Trigger Date Security Agreement") dated as of the date hereof and each Subsidiary entered into by and between Borrower and Agent, Borrower shall assign to Agent a security interest in an investment account in the name of Borrower held within the trust department of U.S. Bank (collectively, the "Additional Collateral") which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: shall at all times have a balance based on the then-current marketable value of the securities held therein in excess of Lender's Exposure (ias defined below) execute and deliver when valued according to the Administrative advance rates set forth in Exhibit A attached hereto. As used herein, "Exposure" shall mean from time to time, the sum of all of Borrower's outstanding obligations under the Loan Documents, including the amount of any undrawn letters of credit issued by Agent for the benefit of Borrower, and all non-credit commitments issued by Agent in favor of Borrower as detailed in Exhibit B attached hereto, plus the Lenders aggregate related trailing six month fee expense related thereto. If the balance of the Additional Collateral Documents shall at any time be less than Lender's Exposure, Borrower shall deliver additional investments or cash into the Additional Collateral account within two (2) business days after Agent's notice to Borrower of such deficiency. Borrower shall deliver to Agent account statements and reports for the Additional Collateral as is required under Section 6.3 of the Credit Agreement and such other information related thereto as Agent may require. The Additional Collateral shall at all times remain subject to a valid control agreement in favor of Agent in form and substance satisfactory to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary . Borrower shall not be permitted to grant first priority perfected liens and security interests (subject only make withdrawals with respect to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative except with Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agentprior consent.
Appears in 1 contract
Samples: Credit Agreement (Axt Inc)
Additional Collateral. Each Significant Subsidiary which is formed The Borrower shall use its best efforts to deliver or acquired after cause to be delivered to the Additional Collateral Trigger Date Agent the following items on or before February 1, 2002, and each Subsidiary which becomes a Significant Subsidiary after in any event shall deliver or cause to be delivered to the Additional Collateral Trigger Date shall: Agent the following items on or before the later of (ia) execute and deliver to February 23, 2002 or (b) the date that Borrower, the Administrative Agent for and the benefit of Required Lenders have entered into an amendment to this Agreement amending the Lenders Additional Collateral Documents in form Consolidated Interest Coverage Ratio and substance satisfactory the Consolidated Leverage Ratio to the Administrative Agentlevels which are mutually satisfactory, including without limitation Security Agreements, Patent, Trademark which amendment may contain such other terms and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary and any other assets of any such Significant Subsidiary conditions as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in formthe Required Lenders: (i) a Subsidiary Guarantee and Subsidiary Subordination Agreement executed by Kenwood Silver Company, scope and substance to the Administrative Agent in its reasonable discretionInc., (ii) Additional Indemnity Agreementsinstruments in form and substance reasonably satisfactory to the Collateral Agent pursuant to which Kenwood Silver Company, Inc. shall become a party to the Security Documents granting to the Collateral Agent a perfected first priority security interest in or pledge of all of its tangible and intangible assets (other than Deposit Accounts), (iii) Landlord WaiversMortgages executed by Borrower and any Subsidiary owning Mortgaged Property granting the Collateral Agent a mortgage Lien on all Mortgaged Property, (iv) fully paid mortgagee title insurance policies (or binding commitments to issue title insurance policies, marked to the satisfaction of the Collateral Agent to evidence the form of such policies to be delivered with respect to the Mortgages) in standard ALTA form, issued by a title insurance company satisfactory to the Collateral Agent in an amount not less than the amount of the Mortgages (except as the Collateral Agent may otherwise agree), insuring the Mortgages to create valid Liens on the Mortgaged Property with no exceptions which the Collateral Agent shall not have approved in writing, (v) instrument surveys dated within 60 days of delivery of all Mortgaged Property prepared by land surveyors acceptable to the Collateral Agent showing the courses and distances of all boundaries of the Mortgaged Property and the location of all improvements, fences, driveways, encroachments and easements affecting or appurtenant to the Mortgaged Property, with the surveys certified to the Collateral Agent and the title insurance company, (vi) a report from an independent real estate appraisal firm acceptable to the Collateral Agent certifying to the Collateral Agent the orderly liquidation value of Borrower's main plant and knife plant in Sherrill, New York and the main plant of Buffalo China, Inc. in Buffalo, New York, (vii) insurance certificates in form satisfactory to the Collateral Agent naming the Collateral Agent a loss payee or mortgagee (as the case may be) with respect to the assets of Kenwood Silver Company, Inc. and the Mortgaged Property, and (ivviii) such other instruments and documents as the Collateral Agent may reasonably request incidental to any of the foregoing. Provided Borrower, the Administrative Agent and the Required Lenders have entered into a mutually acceptable amendment amending the Consolidated Interest Coverage Ratio and the Consolidated Leverage Ratio, Borrower shall deliver or cause to be delivered to the Collateral Agent the foregoing items as and when they become available, including, without limitation, Mortgages on each parcel comprising the Mortgaged Property without the necessity of waiting until the title commitments or title reports insurance policies, surveys and other required documents with respect to any all Mortgaged Property shall become available.
3.26 Section 6.01(h) of such Significant Subsidiary which the Credit Agreement is subject amended to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions read as may be approved in writing by the Administrative Agent.follows:
Appears in 1 contract
Samples: Credit Agreement (Oneida LTD)
Additional Collateral. Each Significant Subsidiary which is formed or acquired after the Additional Collateral Trigger Date The Company and each Subsidiary which becomes Guarantor shall grant to the Collateral Trustee a Significant Subsidiary after first priority security interest in all Collateral (subject to Permitted Liens), whether owned on the Additional Collateral Trigger Date shall: (i) date hereof or hereafter acquired, and shall execute and deliver all documents and shall take all actions reasonably necessary to perfect and protect such security interest in favor of the Collateral Trustee (including, without limitation, the delivery of any applicable foreign pledge, control agreement, mortgage, title insurance policy, title survey, evidence of flood insurance or legal opinion), subject to the Administrative Agent terms of the Intercreditor Agreement (if then in effect). In the event that the Company or any Guarantor acquires any interest in real property and such interest has not otherwise been made subject to the Lien of the Security Documents in favor of Collateral Trustee, for the benefit of the Lenders Additional Collateral Documents in form Holders of Notes and substance satisfactory the holders of other Shared Lien Obligations (if any), then the Company or such Guarantor, as applicable, shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such customary mortgages, documents, instruments, agreements, opinions, title insurance policies, title surveys, evidence of flood insurance and certificates or, to the Administrative Agentextent that any Priority Lien Obligations are incurred, including without limitation Security Agreementssubstantially similar to such mortgages, Patentdocuments, Trademark instruments, agreements, opinions, title insurance policies, title surveys, evidence of floor insurance and Copyright Security Agreementscertificates as are executed and/or delivered to the Priority Lien Collateral Agent (or such other representative of the holders of Priority Lien Obligations) in connection with the incurrence of such Priority Lien Obligations or otherwise, to create in favor of the Collateral Trustee, for the benefit of the Holders of Notes and Mortgages necessary the holders of other Shared Lien Obligations (if any), a valid and, subject to grant any filing and/or recording required in connection therewith, perfected first priority perfected liens and security interests interest (subject only subject, in the case of priority only, to Permitted Liens) in favor of the Lenders such interest in the following assets of the such Significant Subsidiary (subject real property. In addition to the discretion of foregoing, the Administrative Agent Company and each Guarantor shall deliver to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon Trustee such assets is impractical, prohibited appraisals as are required by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property regulation of any such Significant Subsidiary and any other assets of any such Significant Subsidiary as the Administrative Agent interest in its sole discretion may request, (ii) deliver opinions of legal counsel, real property with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by which the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative AgentCollateral Trustee has been granted a Lien.
Appears in 1 contract
Samples: Indenture (Viasystems Inc)
Additional Collateral. Each Significant Subsidiary which is formed or acquired At any time after the Additional Collateral Trigger Closing Date and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (i) execute and deliver to the Administrative Agent for the benefit that any member of the Lenders Additional Collateral Documents Borrower Control Group shall acquire any direct or indirect Equity Interest in any Entity or any debt instrument thereof, Borrower shall cause to be granted to Lender a perfected, second priority Lien (subject and subordinate only to a pledge and security interest in favor of Senior Lender in accordance with the provisions of the Senior Loan Documents) in such Equity Interest or debt instrument within 5 Business Days following the acquisition thereof. In furtherance of the foregoing, at such times as Borrower makes loans to Atria and/or Kapson, such loans shall be evidenced by notes and other loan documents in form reasonably satisfactory to Lender, and Borrower will grant to Lender a perfected second priority lien and security interest (subject and subordinate only to a pledge and security interest in favor of Senior Lender in accordance with the provisions of the Senior Loan Documents) in the loans to said entities, the notes evidencing such loans and any collateral granted to Borrower to secure such loans. Any such liens and security interests shall be created and evidenced by documentation in form and substance reasonably satisfactory to the Administrative AgentLender, including without limitation Security Agreements, Patent, Trademark any UCC or other searches and Copyright Security Agreementsfilings, and Mortgages necessary legal opinions, which Lender may request. The requirement to grant first priority perfected liens and security interests furnish such additional collateral shall not be deemed to constitute the consent by Lender (subject only to Permitted Liens) in favor of the Lenders in the following assets of the such Significant Subsidiary (subject to the discretion of extent that such consent is otherwise required by this Agreement or any Loan Document) to any such acquisition or to the Administrative Agent to exclude any of the following assets from the Additional Collateral in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property making of any such Significant Subsidiary and any other assets loan, or a waiver of any right to withhold such Significant Subsidiary as consent which Lender may otherwise have. All such additional collateral shall be provided at Borrower's expense. Notwithstanding the Administrative Agent in its sole discretion may requestforegoing, (ii) deliver opinions of legal counsel, Borrower shall not be required to pledge any Equity Interests with respect to such Significant SubsidiaryCliveden, including opinions the Destination Entities and PSCO Acquisition Corp. SCHEDULE IV ----------- PLEDGE AGREEMENTS ----------------- Pledge and Security Agreement dated as of local counsel in each applicable jurisdictionthe date hereof by and between Lender, LFSRI II ES and Prometheus ES. Pledge and Security Agreement dated as such opinions may be reasonably required of the date hereof by and between Lender and Prometheus Assisted. Pledge and Security Agreement dated as of the Administrative Agent date hereof by and with such opinions to be satisfactory in formbetween Lender and LFSRI II Assisted. Pledge and Security Agreement dated as of the date hereof by and between Lender and Prometheus UK. Pledge and Security Agreement dated as of the date hereof by and between Lender, scope the Fund, Prometheus Senior Quarters and substance to Prometheus Assisted. Pledge and Security Agreement dated as of the Administrative Agent in its reasonable discretiondate hereof by and between Lender, (ii) Additional Indemnity AgreementsPrometheus SQ Holdings, (iii) Landlord WaiversPrometheus Interim and Senior Quarters Borrower. Pledge and Security Agreement dated as of the date hereof by and between Lender and Prometheus Interim. Pledge and Security Agreement dated as of the date hereof by and between Lender and Atria Holdings. Pledge and Security Agreement dated as of the date hereof by and between Lender, Prometheus Senior Quarters, Prometheus SQ Holdings and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative AgentAtria Holdings.
Appears in 1 contract
Samples: Loan Agreement (Lazard Freres Real Estate Investors LLC)
Additional Collateral. Each Significant Provided no Default or Event of Default exists, the Borrower shall have the right, subject to consent of the Agent and the Required Lenders (which consent may be withheld in its sole and absolute discretion) and the satisfaction by the Borrower of the conditions set forth in this §5.3, to add Potential Collateral to the calculation of Borrowing Base Availability. In the event the Borrower desires to add additional Potential Collateral to the Borrowing Base Availability as aforesaid, the Borrower shall provide written notice to the Agent of such request. The Required Lenders shall have ten (10) Business Days following receipt of all items required under this Agreement to add Real Estate as a Borrowing Base Property to grant or deny approval for such proposed Potential Collateral. If a Lender shall fail to respond within such ten (10) Business Day period, such Lender shall be deemed to have approved such proposed Potential Collateral. Agent shall notify Borrower if and when the Required Lenders have granted such approval. For the avoidance of doubt, only Real Estate that satisfies the requirement to be a Tier 1 Property may be included as Borrowing Base Properties after the date of this Agreement. Notwithstanding the foregoing, Potential Collateral shall not be included in the calculation of the Borrowing Base Availability unless and until the following conditions precedent shall have been satisfied as determined by Agent (or as required by this Agreement, the Required Lenders):
(a) such Potential Collateral shall be Eligible Real Estate and shall not cause a Default under §7.20;
(b) such Real Estate shall be owned (or leased under a Ground Lease) by a Wholly-Owned Subsidiary of the Borrower and leased pursuant to an Operating Lease to a TRS Lessee, and said Wholly-Owned Subsidiary, TRS Lessee and any other Persons required by §5.4 shall have executed a Joinder Agreement and satisfied the conditions of §5.4;
(c) prior to or contemporaneously with such addition, the Borrower shall have submitted to the Agent a Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Agent under §6.4 or §7.4 and a Borrowing Base Certificate, both prepared on a pro forma basis and adjusted to give effect to such addition, and shall certify that after giving effect to such addition, no Default or Event of Default shall exist;
(d) the Borrower, its Wholly-Owned Subsidiary, REIT, TRS Lessee and any other Wholly-Owned Subsidiary of Borrower or REIT owning an interest (or Equity Interest) therein, as applicable, which is formed the owner and/or lessee (whether under a Ground Lease or acquired after Operating Lease) of the Additional Collateral Trigger Date Real Estate and, as applicable, the owner of an Equity Interest in such Persons, as applicable, shall have executed and each Subsidiary which becomes a Significant Subsidiary after the Additional Collateral Trigger Date shall: (i) execute and deliver delivered to the Administrative Agent for the benefit all Borrowing Base Qualification Documents, all of the Lenders Additional Collateral Documents which instruments, documents or agreements shall be in form and substance reasonably satisfactory to the Administrative Agent;
(e) after giving effect to the inclusion of such Eligible Real Estate, including without limitation Security Agreementseach of the representations and warranties made by or on behalf of the Borrower or the Guarantors or any of their respective Subsidiaries contained in this Agreement, Patentthe other Loan Documents or in any document or instrument delivered pursuant to or in connections with this Agreement shall be true in all material respects both as of the date of which it was made and shall also be true as of the time of the addition of such Borrowing Base Property with the same effect as if made at and as of that time, Trademark except to the extent of changes resulting from transactions permitted by the Loan Documents (it being understood and Copyright Security Agreementsagreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date), and Mortgages necessary to grant first priority perfected liens no Default of Event of Default shall have occurred and security interests (subject only to Permitted Liens) in favor be continuing and the Agent shall have received a certificate of the Borrower to such effect; and
(f) the Agent and the Required Lenders as required above shall have consented to the inclusion of such Real Estate in the following assets calculation of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude any of the following assets from the Additional Collateral Borrowing Base Availability, which consent may be granted in the event that the taking of Liens upon such assets is impractical, prohibited by law or commercially unreasonable in the Administrative Agent's judgment): accounts, inventory, furniture, fixtures, improvements, as-extracted collateral, general intangibles, coal supply agreements, other material contracts, coal reserves, mineral rights, the NRP Interests, any material Property of any such Significant Subsidiary ’s sole and any other assets of any such Significant Subsidiary as the Administrative Agent in its sole discretion may request, (ii) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable absolute discretion, (ii) Additional Indemnity Agreements, (iii) Landlord Waivers, and (iv) title commitments or title reports with respect to any Property of such Significant Subsidiary which is subject to any Mortgage evidencing that such Property is free and clear of any and all defects and encumbrances whatsoever and is subject only to such exceptions as may be approved in writing by the Administrative Agent.
Appears in 1 contract