Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any assets acquired after the Restatement Effective Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), promptly (and in any event within 60 days after the acquisition thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assets, subject to no Liens other than Permitted Liens and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents. (b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law): (i) with respect to any person that becomes, after the Restatement Effective Date, a Domestic Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory to the Administrative Agent and (B) except during a Ratings Increase Period, the holder of the Equity Interests of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of the relevant parent company, as the case may be; and (ii) with respect to any person that becomes, after the Restatement Effective Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guaranty, in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications to the Foreign Subsidiary Guaranty as the Administrative Agent (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty. (c) Notwithstanding anything to the contrary contained herein, 66% of the Equity Interests of any Foreign Subsidiary (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof. (d) At any time upon request of the Administrative Agent but except during a Ratings Increase Period, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereof.
Appears in 2 contracts
Samples: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.)
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)6.09, with respect to any assets property acquired after the Restatement Effective Closing Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any is of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the Collateral Agreement on the Closing Date but is not so subject, the Borrower shall (or shall cause the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), Loan Party to) promptly (and in any event within 60 thirty (30) days after the acquisition thereof thereof, or upon such longer period in the sole discretion of the Administrative Agent’s request): ) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or reasonably advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assetsproperty, subject to no Liens other than Permitted Liens those permitted by Section 7.02, and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably take all actions requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Collateral Document in accordance with all applicable requirements Requirements of Law, including the filing of financing statements in all applicable jurisdictions. The Company or any such Domestic Subsidiary that is a Loan Party Borrower shall otherwise take such actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent shall reasonably CHL:63544.12 require to confirm the validity validity, perfection and priority of the Lien of the Collateral Documents against on such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documentsproperties.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) with With respect to any person Person that becomes, after the Restatement Effective Date, is or becomes a Domestic Subsidiary Guarantorof a Loan Party after the Closing Date, promptly, the Borrower shall promptly (and in any event no later than 60 within thirty (30) days after each such person becomes a Domestic Subsidiary GuarantorSubsidiary, shall cause or such longer period in the sole discretion of the Administrative Agent)
(Ai) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory deliver to the Administrative Agent and (B) except during a Ratings Increase Periodthe certificates, the holder if any, representing all of the Equity Interests of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held owned by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law)a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the relevant parent companyholder(s) of such Equity Interests that are Loan Parties, and, to the extent required by any Loan Document, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party, (ii) cause such new Subsidiary (A) to become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a duly executed joinder or supplement to the Subsidiary Guaranty or such other document as the case Administrative Agent shall deem reasonably appropriate for such purpose, whereby such Domestic Subsidiary shall guarantee the obligations of the Loan Parties under the Loan Documents, (B) to execute a joinder or supplement to the Collateral Agreement or such other document as the Administrative Agent shall deem reasonably appropriate for such purpose, to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a security interest in all Collateral (subject to the exceptions specified in the Collateral Agreement) owned by such Subsidiary and (C) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent to cause the Lien created by the applicable Collateral Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law (with first priority, subject only to Liens permitted by Section 7.02), including the filing of financing statements in such jurisdictions as may be; and
be reasonably requested by the Administrative Agent, (iiiii) deliver to the Administrative Agent documents of the types referred to in Section 4.01(a) with respect to such Subsidiary and, if requested by the Administrative Agent, favorable opinions of counsel (which shall cover, among other things, the legality, validity, binding effect, enforceability, creation and perfection of the documentation referred to above), all in form, content and scope reasonably satisfactory to the Administrative Agent and (iv) deliver to the Administrative Agent updated Schedules 5.05(a) and 5.16, and updated Schedules to the Collateral Agreement, as are necessary such that, as updated, such Schedules would be accurate and complete in all material respects.
(c) Upon the formation or acquisition of any person that becomes, after the Restatement Effective Date, a first tier Foreign Subsidiary Guarantorof the Borrower, promptlythe Borrower shall, and in any event no later than 60 within thirty (30) days after each such person becomes a Foreign Subsidiary Guarantor shall cause formation or acquisition (or such Foreign Subsidiary Guarantor to become a Guarantor by executing later date as the Administrative Agent may agree in its sole discretion): (A) a joinder instrument cause at least 65% (to the extent the pledge of a greater percentage would result in adverse tax consequences to the Borrower) of the total outstanding voting Equity Interests (and 100% of the non-voting Equity Interests) owned by the Borrower and its Subsidiaries in such first tier Foreign Subsidiary Guaranty, to be pledged to the Administrative Agent to secure the Obligations by causing the direct owners of such Equity Interests to execute and deliver to the Administrative Agent a pledge agreement or similar agreement in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications (B) deliver or cause to the Foreign Subsidiary Guaranty as be delivered to the Administrative Agent certificates representing such CHL:63544.12 Equity Interests and corresponding undated stock powers duly executed in blank (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained herein, 66% of extent the Equity Interests of any such first tier Foreign Subsidiary are certificated) and other documents required by such agreement with respect to such Equity Interests, (C) take or cause to be taken such other actions as may be necessary to provide the Administrative Agent with a first priority perfected pledge of and 100% security interest in such Equity Interests, (D) if requested by the Administrative Agent, favorable opinions of counsel (which shall cover, among other things, the legality, validity, binding effect, enforceability, creation and perfection of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusivedocumentation referred to above), howeverall in form, of any Immaterial Subsidiary) shall be subject content and scope reasonably satisfactory to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary E) deliver to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Periodupdated Schedules 5.05(a) and 5.16, promptly execute and deliver any and all further instruments and documents and take all updated Schedules to the Collateral Agreement, as are necessary such other action that, as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens ofupdated, such guaranties, Security Agreement Supplements, intellectual property agreement supplements Schedules would be accurate and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereofcomplete in all material respects.
Appears in 1 contract
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)6.09, with respect to any assets property acquired after the Restatement Effective Closing Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any is of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the Collateral Agreement on the Closing Date but is not so subject, the Borrower shall (or shall cause the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), Loan Party to) promptly (and in any event within 60 thirty (30) days after the acquisition thereof thereof, or upon such longer period in the sole discretion of the Administrative Agent’s request): ) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or reasonably advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assetsproperty, subject to no Liens other than Permitted Liens those permitted by Section 7.02, and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably take all actions requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Collateral Document in accordance with all applicable requirements Requirements of Law, including the filing of financing statements in all applicable jurisdictions. The Company or any such Domestic Subsidiary that is a Loan Party Borrower shall otherwise take such actions and execute and/or deliver to the Collateral Administrative Agent such documents as the CHL:83643.8 Administrative Agent shall reasonably require to confirm the validity validity, perfection and priority of the Lien of the Collateral Documents against on such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documentsproperties.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) with With respect to any person Person that becomes, after the Restatement Effective Date, is or becomes a Domestic Subsidiary Guarantorof a Loan Party after the Closing Date, promptly, the Borrower shall promptly (and in any event no later than 60 within thirty (30) days after each such person becomes a Domestic Subsidiary GuarantorSubsidiary, shall cause or such longer period in the sole discretion of the Administrative Agent)
(Ai) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory deliver to the Administrative Agent and (B) except during a Ratings Increase Periodthe certificates, the holder if any, representing all of the Equity Interests of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held owned by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law)a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the relevant parent companyholder(s) of such Equity Interests that are Loan Parties, and, to the extent required by any Loan Document, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party, (ii) cause such new Subsidiary (A) to become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a duly executed joinder or supplement to the Subsidiary Guaranty or such other document as the case Administrative Agent shall deem reasonably appropriate for such purpose, whereby such Domestic Subsidiary shall guarantee the obligations of the Loan Parties under the Loan Documents, (B) to execute a joinder or supplement to the Collateral Agreement or such other document as the Administrative Agent shall deem reasonably appropriate for such purpose, to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a security interest in all Collateral (subject to the exceptions specified in the Collateral Agreement) owned by such Subsidiary and (C) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent to cause the Lien created by the applicable Collateral Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law (with first priority, subject only to Liens permitted by Section 7.02), including the filing of financing statements in such jurisdictions as may be; and
be reasonably requested by the Administrative Agent, (iiiii) deliver to the Administrative Agent documents of the types referred to in Section 4.01(a) with respect to such Subsidiary and, if requested by the Administrative Agent, favorable opinions of counsel (which shall cover, among other things, the legality, validity, binding effect, enforceability, creation and perfection of the documentation referred to above), all in form, content and scope reasonably satisfactory to the Administrative Agent and (iv) deliver to the Administrative Agent updated Schedules 5.05(a) and 5.16, and updated Schedules to the Collateral Agreement, as are necessary such that, as updated, such Schedules would be accurate and complete in all material respects.
(c) Upon the formation or acquisition of any person that becomes, after the Restatement Effective Date, a first tier Foreign Subsidiary Guarantorof the Borrower, promptlythe Borrower shall, and in any event no later than 60 within thirty (30) days after each such person becomes a Foreign Subsidiary Guarantor shall cause formation or acquisition (or such Foreign Subsidiary Guarantor to become a Guarantor by executing later date as the Administrative Agent may agree in its sole discretion): (A) a joinder instrument cause at least 65% (to the extent the pledge of a greater percentage would result in adverse tax consequences to the Borrower) of the total outstanding voting Equity Interests (and 100% of the non-voting Equity Interests) owned by the Borrower and its Subsidiaries in such first tier Foreign Subsidiary Guaranty, to be pledged to the Administrative Agent to secure the Obligations by causing the direct owners of such Equity Interests to execute and deliver to the Administrative Agent a pledge agreement or similar agreement in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications (B) deliver or cause to the Foreign Subsidiary Guaranty as be delivered to the Administrative Agent (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which certificates representing such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained herein, 66% of the Equity Interests of any Foreign Subsidiary and corresponding undated stock powers duly executed in blank (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Equity Interests CHL:83643.8 of such first tier Foreign Subsidiary are certificated) and other documents required by such agreement with respect to such Equity Interests, (C) take or cause to be taken such other actions as may be necessary to provide the Administrative Agent with a first priority perfected pledge of and security interest in such Equity Interests, (D) if requested by the Administrative Agent, favorable opinions of counsel (which shall cover, among other things, the legality, validity, binding effect, enforceability, creation and perfection of the documentation referred to above), all in form, content and scope reasonably satisfactory to the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary E) deliver to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Periodupdated Schedules 5.05(a) and 5.16, promptly execute and deliver any and all further instruments and documents and take all updated Schedules to the Collateral Agreement, as are necessary such other action that, as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens ofupdated, such guaranties, Security Agreement Supplements, intellectual property agreement supplements Schedules would be accurate and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereofcomplete in all material respects.
Appears in 1 contract
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any assets acquired after the Restatement Effective Closing Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Closing Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b))) , promptly (and in any event within 60 days after the acquisition thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assets, subject to no Liens other than Permitted Liens and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Closing Date not made subject to a Lien created by any of the Collateral Documents.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) with respect to any person that becomes, after the Restatement Effective Closing Date, a Domestic Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory to the Administrative Agent and (B) except during a Ratings Increase Period, the holder of the Equity Interests of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of the relevant parent company, as the case may be; and
(ii) with respect to any person that becomes, after the Restatement Effective Closing Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guaranty, in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications to the Foreign Subsidiary Guaranty as the Administrative Agent (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained herein, 66% of the Equity Interests of any Foreign Subsidiary (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Period, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements and other Collateral Documents; providedprovided , thatthat , notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or Agreement)or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereof.
Appears in 1 contract
Samples: Credit Agreement (Herbalife Ltd.)
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)5.09, with respect to any assets property acquired after the Restatement Effective Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any is of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the Security Agreement on the Effective Date but is not so subject, the Borrower shall (or shall cause the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), Loan Party to) promptly (and in any event within 60 30 days after the acquisition thereof thereof, or upon such longer period in the sole discretion of the Administrative Agent’s request): ) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or reasonably advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assetsproperty, subject to no Liens other than Permitted Liens those permitted by Section 6.02, and (ii) file or take all actions requested by the Administrative Agent to cause such Lien to be filed duly perfected to the extent required by such Collateral Document in accordance with all applicable Requirements of Law, including the filing of financing statements in all applicable jurisdictions. The Borrower shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the Administrative Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a Domestic Subsidiary of a Loan Party after the Effective Date, the Borrower shall promptly (and in any event within 15 days after such person becomes a Domestic Subsidiary, or such longer period in the sole discretion of the Administrative Agent) (i) deliver to the Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests that are Loan Parties, and, to the extent required by any Loan Document, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party, (ii) cause such new Subsidiary (A) to become a Guarantor by executing and delivering to the Administrative Agent a Guaranty, whereby such Domestic Subsidiary shall guarantee the obligations of the Loan Parties under the Loan Documents, (B) to execute a joinder agreement to the Security Agreement, substantially in the form annexed thereto, or such other documents as the Administrative Agent shall deem necessary or reasonably advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on the Equity Interests and property of such Subsidiary, subject to no Liens other than those permitted by Section 6.02, and (C) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent to cause the Lien created by the applicable Collateral Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law (with first priority, subject only to Liens permitted by Section 6.02), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or (iii) deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity documents of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject types referred to a Lien created by any of the Collateral Documents.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(iSection 4.01(e) with respect to any person that becomes, after the Restatement Effective Date, a Domestic such Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Periodif requested by the Administrative Agent, a “Pledgor” under favorable opinions of counsel (which shall cover, among other things, the Security Agreement by executing a joinder instrument theretolegality, each validity, binding effect, enforceability, creation and perfection of the documentation referred to above), all in form form, content and substance scope reasonably satisfactory to the Administrative Agent and Agent.
(Bc) except during a Ratings Increase PeriodUpon the formation or acquisition of any First-Tier Foreign Subsidiary of the Borrower, the holder Borrower shall, within 30 days after such formation or acquisition (or such later date as the Administrative Agent may agree in its sole discretion): (A) cause 65% of the Equity Interests owned by the Borrower and its Subsidiaries in such First-Tier Foreign Subsidiary to be pledged to the Administrative Agent to secure the Obligations by causing the direct owners of such Domestic Subsidiary Guarantor, Equity Interests to execute and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such a pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of the relevant parent company, as the case may be; and
(ii) with respect to any person that becomes, after the Restatement Effective Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guaranty, agreement or similar agreement in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications (B) deliver or cause to the Foreign Subsidiary Guaranty as be delivered to the Administrative Agent certificates representing such Equity Interests and corresponding stock powers (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained herein, 66% of extent the Equity Interests of any such First-Tier Foreign Subsidiary are certificated) and other documents required by such agreement with respect to such Equity Interests, (and 100% of the Equity Interests of any Domesticated Foreign SubsidiaryC) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien take or be required cause to be pledged under the applicable Loan Document (except taken such other actions as may be necessary to the extent provide the Administrative Agent with a first priority perfected pledge of and security interest in such Equity Interests and (D) if requested by the Borrowers mutually agree that such Lien or pledge is not commercially reasonable Administrative Agent, favorable opinions of counsel (taking into account the expensewhich shall cover, including taxes, of obtaining the sameamong other things, the ability legality, validity, binding effect, enforceability, creation and perfection of the Company or such Subsidiary documentation referred to obtain any necessary approvals or consents required above), all in form, content and scope reasonably satisfactory to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Period, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereofAgent.
Appears in 1 contract
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Administrative Agent and the Borrowers mutually agree that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any assets acquired after the Restatement Effective Closing Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Closing Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), promptly (and in any event within 60 days after the acquisition thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assets, subject to no Liens other than Permitted Liens and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Closing Date not made subject to a Lien created by any of the Collateral Documents.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) with respect to any person that becomes, after the Restatement Effective Closing Date, a Domestic Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory to the Administrative Agent and (B) except during a Ratings Increase Period, the holder of the Equity Interests of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of the relevant parent company, as the case may be; and
(ii) with respect to any person that becomes, after the Restatement Effective Closing Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guaranty, in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications to the Foreign Subsidiary Guaranty as the Administrative Agent (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained herein, 66% of the Equity Interests of any Foreign Subsidiary (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Period, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or Agreement)or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereof.
Appears in 1 contract
Samples: Credit Agreement (Herbalife Ltd.)
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to the extent the Notify Administrative Agent and at the Borrowers mutually agree time that any Person becomes a Significant Subsidiary or a Direct Domestic Unregulated Subsidiary of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic Subsidiary thereof that is a Loan Party to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewithBorrower, and the effectiveness and enforceability thereof under applicable law), with respect to any assets acquired after the Restatement Effective Date by the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended to be subject to the Lien created by any of the Collateral Documents but that are not so subject, and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents but of a type intended to be subject to the Lien created by the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), promptly thereafter (and in any event within 60 days after 20 days), cause such Person to, at the acquisition thereof or upon the Administrative AgentBorrower’s request): expense:
(i) become a Guarantor by executing and delivering to Administrative Agent a counterpart of the Guaranty or such other document as Administrative Agent shall deem appropriate for such purpose, except to the extent that such Subsidiary is not permitted to be a party to the Guaranty based upon a Law applicable to such Subsidiary by reason of its status as a regulated utility (provided that no such Subsidiary shall be obligated to apply for any discretionary regulatory approvals which would be required to permit its execution of the Guaranty) or a Contractual Obligation of such Subsidiary existing on the date of the Acquisition thereof (and not created in contemplation of such Acquisition);
(ii) deliver to Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a);
(iii) duly execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable joinders to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such properties or assets, subject to no Liens other than Permitted Liens and (ii) file or cause to be filed financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents.
(b) To the extent the Administrative Agent , as specified by and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) with respect to any person that becomes, after the Restatement Effective Date, a Domestic Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument to the Domestic Subsidiary Guaranty and, except during a Ratings Increase Period, a “Pledgor” under the Security Agreement by executing a joinder instrument thereto, each in form and substance reasonably satisfactory to the Administrative Agent (including the pledge and (B) except during a Ratings Increase Period, the holder delivery of the all Equity Interests in and of such Domestic Subsidiary Guarantor, and the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable lawSubsidiary), together with undated stock powers executed and delivered in blank by a duly authorized officer securing payment of all the relevant parent companyObligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such properties, except to the extent that such Subsidiary or such parent, as the case may be, is not permitted to grant such Liens on its properties based upon a Law applicable to such Subsidiary or parent, as the case may be, by reason of its status as a regulated utility (provided that no such Subsidiary or parent, as the case may be, shall be obligated to apply for any discretionary regulatory approvals which would be required to permit its execution of any Collateral Documents) or a Contractual Obligation of such Subsidiary or parent, as the case may be, existing on the date of the Acquisition of such Subsidiary (and not created in contemplation of such Acquisition); and
(iiiv) with respect to any person that becomes, after the Restatement Effective Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guarantyextent such Person is required to execute any Guaranty or Collateral Document pursuant to the foregoing provisions, deliver favorable opinions of counsel to such Person, in form, content and scope reasonably satisfactory to Administrative Agent.
(b) Upon the acquisition of any property by any Loan Party, if such property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority security interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the Borrower shall, at the Borrower’s expense, cause the applicable Loan Party to duly execute and deliver to the Administrative Agent Collateral Documents or joinders to Collateral Documents, as specified by and in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewithsecuring payment of all the Obligations of such Loan Party under the Loan Documents and constituting Liens on all such properties, any such joinder instrument may contain such modifications except to the Foreign Subsidiary Guaranty extent that such Loan Party is not permitted to grant such Liens on such properties based upon a Law applicable to such Loan Party by reason of its status as the Administrative Agent a regulated utility (in consultation with the Borrowersprovided that no such Loan Party shall be obligated to apply for any discretionary regulatory approvals which would be required to permit its execution of any Collateral Document) shall deem necessary or appropriate to take into account any legal restrictions a Contractual Obligation of such Loan Party existing as of the jurisdiction in which date such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed pursuant to the Foreign Subsidiary GuarantyLoan Party became a Guarantor.
(c) Notwithstanding anything to the contrary contained herein, 66% of the Equity Interests of any Foreign Subsidiary (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusive, however, of any Immaterial Subsidiary) shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereof.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase PeriodAgent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements the Guaranty and other the Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereof.
Appears in 1 contract
Additional Guarantors; Additional Collateral. (a) Subject to this Section 6.13 and except during a Ratings Increase Period or to In the extent the Administrative Agent and the Borrowers mutually agree event that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of the Company or any Domestic of its Subsidiaries forms or acquires any Subsidiary thereof after the date hereof, the Company shall promptly (and no later than three Business Days after) notify the applicable Collateral Agent and the Holders of that is fact and cause each such Subsidiary (concurrently with its formation or acquisition) to become a Loan Party Guarantor and to obtain any execute and deliver to the applicable Collateral Agent counterparts of each of this Agreement, the Guaranty and the applicable Security Agreement, and all such further documents and instruments as may be necessary approvals or, in the opinion of the Required Holders or consents required such Collateral Agent, desirable to create a valid and perfected Lien on all of the assets of such Subsidiary, as well as a pledge of all of the Subsidiary’s Capital Stock in favor of such Collateral Agent for the benefit of the Holders. For so long as the Secured Obligations are outstanding, such Lien and pledge in favor of the Holders shall be a First Priority Lien and pledge. The Company shall also deliver to the applicable Collateral Agent and the Holders, together with such counterparts of this Agreement, the Guaranty and the applicable Security Agreement and other documents and instruments, (A) certified copies of such Subsidiary’s Organizational Documents, together with evidence of such Subsidiary’s good standing in the jurisdiction of its organization or formation, each to be obtained under dated as of a recent date prior to their delivery to the Holders, (B) a certificate executed by the secretary or an assistant secretary of such Subsidiary as to (a) the incumbency and signatures of the officers of such Subsidiary executing the counterparts of this Agreement, the Guaranty and the applicable law Security Agreement and such other documents and instruments executed in connection therewiththerewith and (b) the Board of Directors of such Subsidiary authorizing the execution, delivery and performance of the counterparts of the Guaranty and the applicable Security Agreement and such other documents and instruments (which resolutions shall be attached to such certificate) being in full force and effect and not having been modified or rescinded, and (C) a favorable opinion of counsel to the effectiveness Company and enforceability thereof under such Subsidiary, in form and substance reasonably satisfactory to the applicable law)Collateral Agent and the Required Holders. In no event shall any Subsidiary of the Company incur or guaranty any Indebtedness or other obligations of any Xxxxx if such Subsidiary has not become a Guarantor and executed and delivered to the applicable Collateral Agent counterparts of each of this Agreement, the Guaranty and the applicable Security Agreement, and all such further documents and instruments as may be necessary or, in the opinion of the Required Holders or the applicable Collateral Agent, desirable to create a valid and perfected Lien on all of the assets of such Subsidiary, as well as a pledge of all of the Subsidiary’s Capital Stock in favor of the applicable Collateral Agent for the benefit of the Holders.
(b) The Company and each of the Guarantors shall (i) cause the Collateral to be subject at all times to a Lien perfected in favor of the applicable Collateral Agent to secure the obligations pursuant to the terms and conditions of the Collateral Documents or, with respect to any assets such property acquired after subsequent to the Restatement Effective Date date hereof, such other additional security documents as the Holders shall reasonably request, subject in any case to Liens permitted hereunder and (ii) deliver such other documentation as may be necessary or as any Holder or any Collateral Agent may reasonably request in connection with the foregoing, including, without limitation, appropriate UCC financing statements, UCC termination statements and other items of the types required to be delivered pursuant to Sections 3.14 and 3.15, all in form, content and scope reasonably satisfactory to the Required Holders and applicable Collateral Agent, and duly executed by all applicable Persons and/or filed in all jurisdictions necessary or, in the opinion of the Holders, desirable to perfect the security interests created in such Collateral pursuant to the Collateral Documents. Without limiting the generality of the foregoing, the Company or any Domestic Subsidiary thereof that is a Loan Party that are intended and the Guarantors shall cause (i) 100% of the issued and outstanding Capital Stock of each of its Subsidiaries (other than equity interests constituting Required Priority Collateral) to be subject at all times to the a perfected First Priority Lien created by any and pledge in favor of the Collateral Documents but that are not so subject, Agent and with respect to any assets held by the Company or any Domestic Subsidiary thereof that is a Loan Party on the Restatement Effective Date not made subject to a Lien created by any (ii) 100% of the issued and outstanding Capital Stock constituting Required Priority Collateral Documents but of a type intended to be subject at all times to a Required Priority Lien pursuant to the Lien created by terms and conditions of the applicable Collateral Documents (but, in any event, excluding any assets described in Section 6.13(b)), promptly (and in any event within 60 days after the acquisition thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other security documents as the Administrative Required Holders or the applicable Collateral Agent shall deem necessary reasonably request.
(c) Without limitation of Section 7.12(b), upon the lease, license, sublicense or advisable to grant other acquisition by a Note Party after the date hereof of any Oil and Gas Property, then the Company shall, or shall cause the other Note Parties to, grant, within thirty (30) days of the effective date of such lease, license, sublicense or other acquisition (or such longer period as shall be reasonably acceptable to the Administrative AgentRequired Holders), for its benefit to the applicable Collateral Agent to secure the obligations under the Note Documents, a valid First Priority Lien (provided that Permitted Liens or other Liens acceptable to the applicable Collateral Agent and for the benefit Required Holders may exist) on such additional Oil and Gas Property together with each of the Mortgage Related Documents related to such Oil and Gas Property in form and substance satisfactory to the applicable Collateral Agent and the Required Holders. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish and perfect the Liens in favor of the applicable Collateral Agent required to be granted pursuant to the Mortgages, and all taxes, fees and other Secured Partiescharges payable in connection therewith shall be paid in full by such Note Party.
(d) Without limitation of Section 7.12(b), upon the purchase, lease, license, sublicense or other acquisition by a Note Party after the date hereof of any fee or leasehold interest in real property (other than an Oil and Gas Property), then the Company shall, or shall cause the other Note Parties to, grant, within thirty (30) days of the effective date of such purchase, lease, license, sublicense or other acquisition (or such longer period as shall be acceptable to the Required Holders), to the applicable Collateral Agent to secure the obligations under the Note Documents, a valid First Priority Lien (provided that Permitted Liens may exist) on such properties or assetsadditional real property asset, subject together with (i) each of the Mortgage Related Documents related to no Liens other than Permitted Liens such real property, in each case in form and substance reasonably satisfactory to the Required Holders, (ii) file ALTA mortgagee title insurance policies or cause to be filed financing statements in such jurisdictions as may be unconditional commitments therefor issued by one or more title companies reasonably requested by the Administrative Agent and as necessary to cause such Lien to be duly perfected satisfactory to the extent required by such Security Document in accordance with all applicable requirements of Law. The Company or any such Domestic Subsidiary that is a Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent shall require to confirm the validity of the Lien of Collateral Documents against such after-acquired properties or assets, and such assets held on the Restatement Effective Date not made subject to a Lien created by any of the Collateral Documents.
(b) To the extent the Administrative Agent and the Borrowers mutually agree that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of the Borrowers or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law):
(i) Required Holders with respect to any person that becomessuch real property, after in amounts not less than the Restatement Effective Datefair market value of such real property, together with a Domestic Subsidiary Guarantortitle report issued by a title company with respect thereto, promptly, and in any event no later dated not more than 60 thirty days after each such person becomes a Domestic Subsidiary Guarantor, shall cause (A) such Domestic Subsidiary Guarantor to become a Guarantor by executing a joinder instrument prior to the Domestic Subsidiary Guaranty andeffective date of such purchase, except during a Ratings Increase Periodlease, a “Pledgor” under the Security Agreement by executing a joinder instrument theretolicense, sublicense or other acquisition and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Administrative Required Holders and evidence satisfactory to each Purchaser that the Company has paid to the title company or to the appropriate Governmental Authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of the title policy, (iii) a completed Flood Certificate, (A) which Flood Certificate shall (x) be addressed to the applicable Collateral Agent and (y) otherwise comply with the Flood Program; and (B) except during if such real property is located in a Ratings Increase PeriodFlood Zone and is located in a community that participates in the Flood Program, evidence that the holder applicable Note Party has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Equity Interests Flood Program; (iv) if such real property is acquired by a Note Party in fee simple, ALTA surveys certified to the applicable Collateral Agent and dated not more than thirty days prior to the effective date of such Domestic Subsidiary Guarantorpurchase, lease, license, sublicense or other acquisition; and (v) if such real property is a Leasehold Property, a Landlord Consent and evidence that such Leasehold Property is a Recorded Leasehold Interest. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish and perfect the Domestic Subsidiary Guarantor, to deliver to the Administrative Agent the certificates (if any) representing the Equity Interests Liens in favor of the Domestic Subsidiary Guarantor and any certificated Equity Interests constituting Collateral then held by the Domestic Subsidiary Guarantor (provided, that, in no event shall the any certificated Equity Interests be Agent required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of the relevant parent company, as the case may be; and
(ii) with respect to any person that becomes, after the Restatement Effective Date, a Foreign Subsidiary Guarantor, promptly, and in any event no later than 60 days after each such person becomes a Foreign Subsidiary Guarantor shall cause such Foreign Subsidiary Guarantor to become a Guarantor by executing (A) a joinder instrument to the Foreign Subsidiary Guaranty, in form and substance reasonably satisfactory to the Administrative Agent; and, in connection therewith, any such joinder instrument may contain such modifications to the Foreign Subsidiary Guaranty as the Administrative Agent (in consultation with the Borrowers) shall deem necessary or appropriate to take into account any legal restrictions of the jurisdiction in which such Foreign Subsidiary Guarantor is organized, provided such modifications do not expand the scope of debt guaranteed granted pursuant to the Foreign Subsidiary Guaranty.
(c) Notwithstanding anything to the contrary contained hereinMortgages, 66% of the Equity Interests of any Foreign Subsidiary (and 100% of the Equity Interests of any Domesticated Foreign Subsidiary) (exclusiveall taxes, however, of any Immaterial Subsidiary) fees and other charges payable in connection therewith shall be subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent and the Borrowers mutually agree that paid in full by such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of obtaining the same, the ability of the Company or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)); and, in any event, no Loan Party shall be required to deliver any supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the laws of the United States or any political subdivision of any thereofNote Party.
(d) At any time upon request of the Administrative Agent but except during a Ratings Increase Period, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, intellectual property agreement supplements and other Collateral Documents; provided, that, notwithstanding any other provision of the Loan Documents, no Loan Party shall be required to (x) take any action to perfect the Liens created under the Security Agreement, other than the filing of appropriate UCC1 financing statements and the delivery of certificated securities (if any) evidencing the Equity Interests of a Subsidiary thereof, the equity securities of which comprise an item of the Collateral (subject however to the preceding clause (c) and any limitations under the Security Agreement) or (y) otherwise execute and deliver any instrument or agreement governed by the laws of any jurisdiction other than the United States or a political subdivision thereof.
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