Additional Security; Further Assurances; etc. (a) Holdings and Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 6 contracts

Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings, Borrower~~ the Borrowers and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor ~~Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date~~, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to~~, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that Lead Borrower has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of Lead Borrower to, at the expense of Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, ~~Borrower~~ the Borrowers will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) ~~Borrower agrees~~ The Borrowers agree that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the ~~Administrative Agent or~~ Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Lead Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ the Borrowers or any of ~~its~~ their Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; ~~provided, further,~~ provided further that, ~~Borrower~~ the Borrowers shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to ~~Borrower~~ the Borrowers of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Lead Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency ~~Management~~ Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Lead Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Lead Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Lead Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any ~~Material Real~~ Mortgaged Property, the Credit Parties shall not be required to grant a Mortgage on such ~~Material Real~~ Mortgaged Property in favor of such Person or otherwise comply with respect to such Person with the provisions of the Credit Documents relating to ~~Mortgages with respect to such Material Real Property~~Mortgages.

Appears in 6 contracts

Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, ~~and~~ a Canadian Subsidiary or a Dutch Subsidiary, but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests in such Collateral of such Borrower and ~~Mortgages (except to the extent that the enforceability thereof may be limited~~ such Restricted Subsidiaries as are not covered by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary, a Canadian Subsidiary, or a Dutch Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agents, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Closing Date with respect to the Security Documents delivered on the Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitation set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of ~~Borrower~~the Company, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at ~~Borrower~~Company’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada and with respect to the Dutch Credit Parties, under applicable law in the Netherlands or England) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term “Eligible Accounts” solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, Canada or the Netherlands) for inclusion in the applicable Borrowing Base or (y) any requirement to take any Additional Inventory Security Action set forth in the definition of the term “Eligible Inventory” solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Borrower and located in the United Kingdom, France or Germany for inclusion in the Dutch Borrowing Base, in no event will ~~Borrower or any of its Restricted Subsidiaries~~ the Credit Parties be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.10. (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, ~~further~~to request Account Debtor notifications in the relevant Account Debtor Approved Countries, ~~that, Borrower~~ the Relevant Borrowers shall ~~give~~ provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent’s security interest in the Accounts owing by such Account Debtors. (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Closing Date (or, in each such case, with respect to any Person that is or becomes after the Closing Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Closing Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 4 contracts

Samples: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu~~ Intercreditor Agreement, any Additional ~~Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu~~ Intercreditor Agreement, any Additional ~~Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date~~, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to~~, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Subsidiaries Guaranty ~~Agreement~~ and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and~~ The Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or (x) with respect to any required Mortgages, such later date on which the Borrower has received confirmation from the Administrative Agent that (A) flood insurance due diligence has been completed in a manner reasonably satisfactory to the Administrative Agent and all Lenders (including, for the avoidance of doubt, delivery by the Borrower to the Administrative Agent of a completed “Life-of-Loan” FEMA standard flood hazard determination and, if such applicable Real Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area, a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any Credit Party relating thereto) and (B) it is reasonably satisfied that flood insurance complies with Section 9.03 hereto and (y) in each case, such longer period as the Administrative ~~Agent or Collateral~~ Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that the Borrower has notified the ~~Collateral~~ Administrative Agent that it intends to dispose of pursuant to a disposition permitted by Section ~~10.04~~10.02), as the case may be; provided that, in no event will the Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 4 contracts

Samples: Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu~~ Intercreditor Agreement, any Additional ~~Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu~~ Intercreditor Agreement, any Additional ~~Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date~~, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to~~, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Subsidiaries Guaranty ~~Agreement~~ and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and~~ The Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative ~~Agent or Collateral~~ Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that the Borrower has notified the ~~Collateral~~ Administrative Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 3 contracts

Samples: Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Except during a Collateral Release Period and ~~Borrower~~ other than with respect to an Excluded Entity (as defined in the US Pledge Agreement), each of the Borrowers will, and will cause each of the US Subsidiary Guarantors, Canadian Guarantors, Dutch Guarantors and Related Foreign Company Guarantors to, grant to the Collateral ~~Agent~~ Agent, for the benefit of the Secured Creditors described in the Security Documents to which such Credit Party is a party, security interests in the capital stock and ~~Mortgages in~~ other equity interests of the Subsidiaries owned by such ~~assets and properties~~ Credit Party (which, in the case of ~~Real Property~~Foreign Subsidiaries (other than Canadian Subsidiaries) owned by a Foreign Credit Party, shall be limited to Material ~~Real Property~~Subsidiaries organized in the country of such Foreign Credit Party which are directly owned by such Foreign Credit Party) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents to which such Credit Party is a party, or as may be ~~reasonably~~ requested from time to time by the ~~Collateral Agent~~ Required Lenders (~~collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “Additional Security Documents”). ~~All such~~ Such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and shall (~~subject~~ except as otherwise consented to ~~exceptions as are reasonably acceptable to~~ by the ~~Collateral Agent~~Required Lenders) ~~shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, except ~~for~~ Permitted Liens. The Additional Security Documents or other instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent) the Liens~~ Liens, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full; provided, however, no US Pledge Agreement that is governed by local law shall be required for the capital stock of any Foreign Subsidiary of Silgan that is owned directly by a US Credit Party unless such Foreign Subsidiary is either a Canadian Subsidiary, Dutch Subsidiary or a directly owned Foreign Credit Party. Notwithstanding ~~any other provision~~ the foregoing, except as, and to the extent, provided in ~~this Agreement or any other~~ Section 8.10, (i) no Foreign Credit ~~Document, no Excluded Subsidiary~~ Party shall be required to ~~pledge~~ guaranty the Obligations of any US Credit Party or have any equity interests owned by it secure the Obligations of ~~its assets~~ any US Credit Party and (ii) to ~~secure any obligations~~ the extent required, a Credit Party shall only be required to execute and deliver Additional Security Documents in connection with a Restructuring Transaction upon completion of ~~Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~such Restructuring Transaction. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Borrowers will, and will cause each of the other Credit Parties to, at ~~the expense of Borrower~~its own expense, ~~make, execute, endorse, acknowledge, file and/or~~ deliver to the Collateral ~~Agent, promptly, upon the reasonable request of the Administrative~~ Agent agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrowers shall cause to be delivered to the ~~extent deemed~~ Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity~~to assure themselves that this Section 8.09 (and, ~~perfection and priority (subject to the terms of the ABL Intercreditor Agreement~~if applicable, ~~the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement~~Section 8.10) ~~of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~has been complied with. (dc) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Borrowers agrees that each action required above by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 8.09 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ either requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or ~~such longer period as~~ otherwise required to be taken by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)respective Credit Parties, as the case may ~~be; provided that,~~ be (as such date may be extended by the Administrative Agent in no its sole discretion). (d) In the event ~~will~~ that any Borrower or any of its ~~Restricted~~ Subsidiaries ~~be required~~ which are Credit Parties changes its legal name or jurisdiction of organization, (i) it will give to ~~take any action to obtain consents from third parties~~ the Administrative Agent and the Collateral Agent prompt written notice clearly describing such new name and/or jurisdiction of organization and providing such other information in connection therewith as the Administrative Agent and the Collateral Agent may reasonably request, and (ii) with respect to ~~its compliance with this Section 9.12; provided~~such new name and/or jurisdiction of organization, ~~further~~it shall take all action, ~~that, Borrower shall give~~ reasonably satisfactory to the Administrative Agent and the Collateral ~~Agent 45 days written notice prior~~ Agent, to ~~granting~~ maintain the security interests granted by any ~~Mortgage~~ Borrower or any such other Credit Party to the Collateral Agent ~~for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i)~~ in the Collateral ~~Agent has provided written notice~~ pursuant to ~~Borrower of the completion of~~ any Security Document at all ~~required flood insurance due diligence~~ times fully perfected and ~~flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof~~ in full force and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyeffect.

Appears in 3 contracts

Samples: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)

Additional Security; Further Assurances; etc. (a) Each of Holdings and the Borrower ~~will,~~ will and will cause each of the ~~Subsidiary Guarantors to,~~ Credit Parties to grant to the Collateral Agent for the benefit of the ~~Secured~~ Guaranteed Creditors security interests and Mortgages in such assets and properties ~~(in the case of Real Property, limited to Material Real Property)~~ of Holdings, the Borrower and ~~the Subsidiary Guarantors~~ each other Credit Party as are ~~acquired after~~ not covered by the Security Documents to which it is a party on the Closing Date ~~(other than assets constituting Excluded Collateral)~~ and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”), in each case, except for those assets and properties expressly excluded pursuant to the Security Documents (including in respect of Excluded Property (as defined in the Security Agreement). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required by the applicable Security Documents) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Collateral Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required by the applicable Security Documents) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes a ~~Restricted~~ Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ of Holdings after the Closing ~~Date~~Date that directly or indirectly owns any Equity Interests of the Borrower, including any MLP formed by Holdings in connection with any MLP Set-Up Transaction, Holdings ~~and Borrower will, and~~ will ~~cause each applicable Restricted Subsidiary to,~~ (i) deliver to the Collateral ~~Agent~~ Agent, on the date of formation of such Subsidiary, the certificates, if any, representing all ~~(or such lesser amount as is required)~~ of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate ~~instruments of transfer~~ transfers duly executed ~~and delivered~~ in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement)blank, (ii) cause such ~~new Restricted Subsidiary (other than an Excluded~~ Subsidiary) , on or prior to the date of its formation, to (A) execute and deliver a Guaranty in form and substance reasonably acceptable to the Administrative Agent to become a Guarantor, (B) execute and deliver a joinder agreement to the ~~Guaranty~~ Security Agreement in form and substance reasonably acceptable to the Administrative Agent to become a ~~joinder agreement to each applicable Security Document~~grantor thereunder and pledge all of the Equity Interests held by it, ~~substantially in~~ including 100% of the ~~form annexed thereto~~Equity Interests of the Borrower, and (BC) take all actions reasonably necessary or advisable ~~in the opinion of the Administrative Agent or the Collateral Agent~~ to cause the Lien created by the ~~applicable~~ Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Security Agreement in accordance with all applicable ~~Requirements~~ requirements of ~~Law~~law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the other Credit Parties to~~, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly~~promptly (but in any event within the time periods set forth in Section 9.13 or such longer period as the Administrative Agent may reasonable agree), upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents~~ Documents, including “Life-of-Loan” flood hazard determinations and if applicable, executed Notices to ~~the extent~~ Borrower and evidence of flood insurance, mortgagee title policies, surveys, opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Collateral Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a), (b) ~~through~~ and (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (10 days in the case of clause (b)) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Holdings or the Borrower or any ~~of its Restricted Subsidiaries~~ other Credit Party be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 3 contracts

Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP), Term Loan Credit Agreement (OCI Partners LP)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Lead Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC, (ii) security interests and Mortgages shall not be required with respect to any Real Property that is not Material Real Property and (iii) security interests and Mortgages shall not be required with respect to any assets or properties to the extent that such security interests or Mortgages would result in a material adverse tax consequence to the Lead Borrower or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. With respect to any Material Real Property not covered by the original Security Documents, the Lead Borrower will provide at least 45 days prior written notice prior to pledging any Material Real Property and will not execute any Mortgage on such Material Real Property until confirmation from all Secured Creditors that flood insurance due diligence and flood insurance as required by Section 9.03 hereto is complete. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Subsidiary of a CFC or FSHCO shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor ~~Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the ~~Guaranty Agreement and~~ Subsidiaries Guaranty, a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and a certificate attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit E with all appropriate insertions and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and~~ The Lead Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Lead Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) the Lead Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Lead Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided~~. (f) Upon request from the Administrative Agent, ~~further, that,~~ the Lead Borrower shall ~~give~~ provide the ~~Collateral~~ Administrative Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance ~~as required by~~ in accordance with Section 9.03 ~~hereof. Notwithstanding anything in~~ and any ~~Credit Document~~ additional information necessary to ~~the contrary, if the Collateral Agent or any Lender is not satisfied~~ ensure compliance with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyFlood Insurance Laws.

Appears in 3 contracts

Samples: First Lien Term Loan Credit Agreement (PAE Inc), First Lien Term Loan Credit Agreement (PAE Inc), First Lien Term Loan Credit Agreement (PAE Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the Subsidiary Guarantors to~~, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents to the extent required thereunder and as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection (or the equivalent with respect to each Canadian Credit Party under Applicable Law in Canada) action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected (or the equivalent with respect to each Canadian Credit Party under Applicable Law in Canada) security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, in each case, except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit ~~Document~~Document and solely with respect to the U.S. Subfacility, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Domestic Subsidiary of a Foreign Subsidiary that is a CFC shall be required to ~~pledge~~ pledge, nor shall the U.S. Collateral include, any of its assets to secure any obligations of the U.S. Credit Parties under the Credit Documents relating to the U.S. Subfacility or guarantee the obligations of the Lead Borrower under the Credit Documents ~~or guarantee~~ relating to the ~~obligations of Borrower under the Credit Documents~~U.S. Subfacility. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each~~ the applicable Credit Party that is the parent of such Restricted Subsidiary ~~to, (i) deliver to the Collateral Agent the certificates, if any, representing all (~~or ~~such lesser amount as is required) of the Equity Interests of~~ such Restricted Subsidiary, ~~together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by~~ as applicable, shall promptly (i) if a ~~duly authorized officer of the holder(s) of such Equity Interests~~Domestic Subsidiary, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Domestic Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty ~~Agreement~~ set forth herein to join as a Guarantor and a joinder agreement to each applicable Security Document, substantially in the form annexed ~~thereto,~~ thereto and (B) cause such new Domestic Subsidiary to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, (ii) if a Canadian Subsidiary, cause such Canadian Subsidiary (other than an Excluded Subsidiary) (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Canadian Subsidiary Guarantor, and to the Credit Party Guaranty set forth herein to join as a Canadian Subsidiary Guarantor and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto or to execute an applicable Security Document, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower will~~To the extent required under the Credit Documents, ~~and will cause~~ each of the ~~other Credit Parties to~~Lead Borrower and each Restricted Subsidiary will, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of~~ Lead Borrower and the ~~Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e)~~ Canadian Borrower agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, ~~the~~ Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, except with respect to Deposit Account Control Agreements, in no event will the Lead Borrower, the Canadian Borrower or any of ~~its~~ their Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 3 contracts

Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 5.12(a) shall not (i) apply to any ~~other provision~~ Excluded Collateral or (ii) require any Credit Party to grant a Mortgage in ~~this Agreement~~ (x) any Leasehold, (y) any owned Real Property the book value of which is less than $5,000,000 or (z) any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsREO Assets. (b) ~~Subject~~ [Reserved]. (c) With respect to ~~the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement,~~ owned Real Property with respect to ~~any Person that~~ which a Mortgage is ~~or becomes a Restricted Subsidiary (or ceases~~ delivered pursuant to ~~be an Excluded Subsidiary) after the Closing Date~~this Section 5.12, ~~Holdings and~~ Borrower ~~will, and~~ will ~~cause each applicable Restricted Subsidiary to,~~ promptly (i) if requested by the Collateral Agent, provide the Lenders with a Mortgage Policy covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as an ALTA survey thereof certified to the Collateral Agent in form reasonably satisfactory to the Collateral Agent and (ii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the ~~certificates~~matters described above, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed which opinions shall be in form and ~~delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests~~substance, and ~~all intercompany notes owing~~ from ~~such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case~~counsel, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver satisfactory to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents . No later than three Business Days prior to the ~~extent deemed by~~ date on which a Mortgage is executed and delivered pursuant to this Section 5.12(c), in order to comply with the ~~Administrative Agent or~~ Flood Laws, the Collateral Agent ~~reasonably necessary for~~ shall have received the ~~continued validity~~following documents (collectively, ~~perfection and priority~~ the “Flood Documents”): (~~subject~~ A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the ~~terms~~ applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the ~~ABL Intercreditor Agreement~~Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the ~~Pari Passu Intercreditor Agreement~~borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent (any ~~Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement)~~ of the ~~Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~foregoing being “Evidence of Flood Insurance”). (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 5.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will the Borrower or any ~~of its~~ Restricted ~~Subsidiaries~~ Subsidiary be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.12.

Appears in 3 contracts

Samples: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of Holdings to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property)~~ Holdings and such other Credit Parties that are Restricted Subsidiaries of ~~Holdings, Borrower and the Subsidiary Guarantors~~ Holdings as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that the pledge of the outstanding capital stock of any Foreign Subsidiary directly owned by the U.S. Borrower or a Domestic Subsidiary (other than a Canadian Subsidiary, although any pledge of outstanding capital stock of the Canadian Subsidiary in excess of the amount specified below shall be limited to securing guarantees of obligations of the Canadian Borrower as more fully provided in the Pledge Agreement) shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such Foreign Subsidiary and (y) one-hundred percent (100%) of the non-voting Equity Interests of such Foreign Subsidiary; provided, further, that the pledge of the outstanding capital stock of any Foreign Subsidiary other than a Canadian Subsidiary shall be limited to securing the obligations of the Canadian Borrower. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Agreement Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, ) superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in ~~this~~ the Credit Agreement or any other Credit Document, no ~~Excluded~~ Foreign Subsidiary shall be required to pledge any of its assets to secure any obligations of the U.S. Borrower ~~under the Credit Documents or~~ and in no event shall any Foreign Subsidiary be required to guarantee the obligations of a Borrower ~~under the Credit Documents~~or any Domestic Subsidiary. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of Holdings to, at the expense of the respective Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory collateral assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties that are Restricted Subsidiaries of Holdings to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent to assure itself that this Section 9.12 has been complied with. Notwithstanding the foregoing, nothing in this Agreement shall require any Credit Party to make any filings or take any other actions to record or perfect the Collateral ~~Agent reasonably necessary for~~ Agent’s Lien in any Intellectual Property outside the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens United States or ~~as otherwise permitted by the applicable Security Document~~Canada. (dc) If the Administrative ~~Agent or the Collateral~~ Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~owned Real Property of Holdings and its Restricted Subsidiaries constituting Collateral, the relevant Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) ~~Borrower~~ Holdings agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)Lenders, as the case may be; provided that, in no event will ~~Borrower~~ Holdings or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 3 contracts

Samples: Credit Agreement (Bway Parent Company, Inc.), Credit Agreement (Phoenix Container, Inc.), Credit Agreement (BWAY Holding CO)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ The Borrower Agent and each Parent Guarantor (i) will cause each Wholly-Owned Domestic Subsidiary or any other Person that becomes a Wholly-Owned Domestic Subsidiary after the Closing Date (in each case, other than any Excluded Subsidiary, but only for so long as such Wholly-Owned Domestic Subsidiary or such Person remains an Excluded Subsidiary) to promptly, but no later than 20 Business Days after the date on which such Person becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (as such date may be extended by the Administrative Agent) and (ii) to the extent any Domestic Subsidiary of the Borrower Agent, any Parent Guarantor or any other Person is or becomes a guarantor, or grants a security interest in any of its assets to support, with respect to the Exit Notes, the Exit Term Loan Credit Agreement and any Permitted Refinancing Indebtedness that refinances the Exit Notes or the Exit Term Loan Credit Agreement, but such Subsidiary or Person is not a Guarantor, the Borrower Agent and the Parent Guarantors will cause such Subsidiary or Person to (A) become a Guarantor as described in the Guarantee Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit A and (B) grant security interests over any Collateral as described in the Pledge and Security Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit 10. (b) [Reserved]. (c) Subject to Section 9.17, the Borrower Agent, Parent Guarantors and their Restricted Subsidiaries will cause (i) 100% of the Equity Interests of each Subsidiary that is a Guarantor and (ii) 100% of the Equity Interests of each Domestic Subsidiary and 65% of the aggregate of the total outstanding Voting Stock (and 100% of each class of issued and outstanding Equity Interest other than Voting Stock) of each Foreign Subsidiary held directly by the Borrower Agent, any Parent Guarantor or any Subsidiary Guarantor (or, if less, the full amount owned by the Borrower Agent, such Parent Guarantor and each such Subsidiary Guarantor), in each case, to be subject at all times to a perfected Lien in favor of the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the terms and conditions of the Security Documents and the Intercreditor Agreements, as applicable, and such other security documents as the Administrative Agent shall reasonably request. (d) Subject to Section 9.17, the Loan Parties will (i) cause each loan or advance that is outstanding on or after the Closing Date to a Loan Party by a Restricted Subsidiary to be evidenced by an Intercompany Note duly executed and delivered, (ii) deliver such Intercompany Note to the Collateral Agent, together with an appropriate allonges or other endorsement reasonably satisfactory to the Administrative Agent, and (iii) execute such Security Documents in connection with the pledge of such Intercompany Note as the Administrative Agent may reasonably request. (e) The Borrower Agent and the Parent Guarantors will, and will cause each of the ~~Subsidiary~~ other Loan Parties to, at the expense of the Borrowers, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates (including flood certificates and evidence of flood insurance if applicable), reports, control agreements (other than with respect to Excluded Assets) and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent in its Permitted Determination may reasonably request. Furthermore, the Borrower Agent and the Parent Guarantors will, and will cause the other Loan Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent in its Permitted Determination to assure that this Section 9.13 has been complied with. (f) The Borrower Agent and each other Loan Party shall, within 30 days following the Closing Date (as such date may be extended from time to time by the Administrative Agent in its reasonable discretion), enter into one or more Cash Management Control Agreements as, and to the extent, required by Section 5.03(b). (g) Within one-hundred twenty (120) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the acquisition by a Borrower of any Material Real Property after the Closing Date, upon Administrative Agent’s request: (i) The Borrower Agent and the Parent Guarantors will, and will cause each other Borrower to, grant to the Collateral Agent for the ratable benefit of the Secured ~~Creditors security interests and~~ Parties Mortgages ~~in such assets and properties~~ (~~in the case of Real Property~~and, ~~limited to~~ if required by local law, related UCC fixture filings) over any Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such ~~security interests and~~ Mortgages ~~shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request~~(and, ~~including~~if applicable, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral AgentUCC fixture filings) shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens ~~with priority by virtue of applicable law and~~ subject to no other Liens except for Permitted ~~Liens~~Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement. The ~~Additional Security Documents~~ Mortgages (and related UCC filings) or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsMortgages. (bii) ~~Subject~~ In connection with each Mortgage delivered pursuant to clause (i) above, the Administrative Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Administrative Agent in its Permitted Determination, in an insured amount reasonably satisfactory to the Administrative Agent in its Permitted Determination insuring the Administrative Agent that the Mortgage on such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens and, subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ ABL/Term Loan/Notes Intercreditor Agreement, with ~~respect to any Person that is or becomes a Restricted Subsidiary~~ each such Mortgage Policy (~~or ceases~~ 1) to be ~~an Excluded Subsidiary) after~~ in form and substance reasonably satisfactory to the ~~Closing Date, Holdings and Borrower will~~Administrative Agent in its Permitted Determination, and ~~will cause each applicable Restricted Subsidiary to,~~ (i2) ~~deliver~~ to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each caseinclude, to the extent ~~required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement~~ applicable and ~~a joinder agreement to each applicable Security Document, substantially~~ available in the ~~form annexed thereto~~applicable jurisdiction at commercially reasonable rates, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions supplemental endorsements as ~~may be~~ reasonably requested by the Administrative Agent or in its Permitted Determination provided however, in lieu of a zoning endorsement the ~~Collateral~~ Administrative Agent ~~and~~ shall accept a zoning report. (iii) at In connection with each Mortgage delivered pursuant to clause (i) above, to induce the ~~reasonable request~~ title company to issue the Mortgage Policies referred to in clause (ii) above, the title company shall have received such affidavits, certificates, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the ~~Administrative Agent~~title company, ~~deliver or cause~~ together with payment by the Borrower Agent of all Mortgage Policy premiums, search and examination charges, mortgage recording taxes, costs and expenses required for the recording of such Mortgages and issuance of such Mortgage Policies. (iv) In connection with each Mortgage delivered pursuant to ~~be delivered to~~ clause (i) above, the Administrative Agent shall have received either an ~~opinion, addressed~~ existing survey together with a no change affidavit sufficient for the title company to remove the ~~Administrative Agent~~ standard survey exception and issue the ~~other Lenders,~~ customary survey related endorsements or a new ALTA/ACSM Land Title survey of ~~counsel~~ the relevant Mortgaged Property (and all improvements thereon) in form and substance reasonably acceptable to the Administrative Agent as in its Permitted Determination. (v) In connection with each Mortgage delivered pursuant to ~~such matters set forth in this Section 9.12(b~~clause (i) as above, the Administrative Agent ~~may reasonably request. (c) Holdings and Borrower will, and will cause each~~ shall have received a “life of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency ~~standard flood hazard determinations~~ Standard Flood Hazard Determination with respect to each Mortgaged ~~Property and~~Property, in form and substance acceptable to the ~~extent any improved Mortgaged Property is located~~ Administrative Agent in ~~an area determined by the Federal Emergency Management Agency~~ its Permitted Determination (~~or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a~~ together with notice of about special flood hazard area status and flood disaster ~~assistance and~~assistance, ~~if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a~~ duly executed ~~acknowledgment of receipt thereof~~ by the Borrower Agent and ~~(ii)~~ applicable Subsidiary and evidence of flood ~~insurance as required by Section 9.03 hereof. Notwithstanding anything~~ insurance, in the event any ~~Credit Document~~ improvements are located in a special flood hazard area) in accordance with the Flood Laws. (vi) In connection with each Mortgage delivered pursuant to clause (i) above, the Administrative Agent shall have received opinions of counsel for the Loan Parties in the jurisdiction where such Mortgaged Property is located, in form and substance reasonably satisfactory to the ~~contrary~~Administrative Agent in its Permitted Determination, if and such other documents as the Administrative Agent in its Permitted Determination reasonably requests. (h) In the event any perfection steps in respect of any Collateral ~~Agent~~ are taken for the benefit of the lenders or any ~~Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any~~ other secured party in respect of the ~~deliveries referred to in~~ Exit Term Loans or the ~~immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property~~Exit Notes, the ~~Credit Parties~~ Borrower Agent shall ~~not be required~~ and shall cause its Restricted Subsidiaries to ~~grant a Mortgage on such Material Real Property~~ take the same steps in favor of ~~such Person or otherwise comply with~~ the ~~provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~Secured Parties.

Appears in 3 contracts

Samples: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case of Real Property, limited to Material Real Property)~~ of Holdings, the Borrower and the Subsidiary Guarantors as are acquired after the ~~Closing~~ Amendment and Restatement Effective Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Original Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent (including, upon the reasonable request of the Administrative Agent, an opinion of counsel addressed to the Administrative Agent and the other Lenders reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(a) as the Administrative Agent may reasonably request (it being understood any opinion of counsel in substantially the form as the opinion of counsel delivered on the Original Closing Date pursuant to Section 6.03 shall be acceptable to the Administrative Agent)) and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (ed) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to ~~the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the ~~Closing~~ Amendment and Restatement Effective Date, on the Amendment and Restatement Effective Date, or if later, not later than forty-five (45) days after becoming a Restricted Subsidiary (or ceasing to be an Excluded Subsidiary) Holdings and the Borrower will, ~~and~~ or will cause ~~each applicable~~ the Restricted Subsidiary ~~to,~~ to (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted Subsidiary~~Subsidiary issued to a Credit Party and required to be pledged pursuant to the Security Documents, 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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that the Borrower has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and the Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries to, at the expense of ~~Borrower~~Holdings, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly,~~ promptly upon the reasonable request of the Administrative Agent or the Collateral Agent, at ~~Borrower’s~~ Holdings’ expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) ~~through~~ and (dc) of this Section 9.12 shall be completed in no event later than 90 days (or such later time as the Administrative Agent may reasonably agree) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent~~, the Collateral Agent or the Required Lenders~~ . (~~or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to~~ e) Notwithstanding any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, other provision in ~~no event will Borrower~~ this Agreement or any ~~of its Restricted Subsidiaries be required~~ other Credit Document, Parent, Satelles, Inc., Syncom-Iridium Holdings Corp. and/or Iridium Blocker-B. Inc. are permitted, at their discretion, to ~~take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give~~ guarantee the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Obligations by executing a joinder agreement to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseGuaranty Agreement, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to substantially in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyform annexed thereto.

Appears in 2 contracts

Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral ~~Agent~~ Trustee for the benefit of the Secured ~~Creditors~~ Parties security interests and Mortgages in such assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors as are acquired after the Closing Date~~ such other Credit Party (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets (including Excluded Equity Interests)) as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as ~~may be~~ amended, ~~amended and~~ restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral ~~Agent~~ Trustee and ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent)~~ Borrower and shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law))) under applicable domestic law and perfected security interests, ~~subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement,~~ Mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent the assets subject to the applicable Additional Security Document can be perfected by the actions required by such Additional Security Document), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral ~~Agent~~ Trustee required to be granted pursuant to the Additional Security ~~Documents~~Documents and all material taxes, fees and other charges payable in connection therewith shall be paid in full to the extent due and owing. Notwithstanding the foregoing, this Section 9.10(a) shall not apply to (and the Borrower and its Restricted Subsidiaries shall not be required to grant a Mortgage in) (i) any ~~other provision~~ owned Real Property the Fair Market Value or book value of which (as reasonably determined by Borrower or such Subsidiary) is less than or equal to $25,000,000 (provided that the Borrower and its Restricted Subsidiaries shall not be required to grant a Mortgage in ~~this Agreement~~ any Real Property that the Fair Market Value and book-value are less than the foregoing threshold on the Closing Date), (ii) any Leasehold, or (iii) any of the South Bay Facility, the Vermilion Facility, the Havana 1-5 Units, the Wood River 1-3 Units, the Xxxxxxx Facility or the Xxxxxxxxx Facility or any ~~other Credit Document~~Buffer Land to (a) any of the foregoing properties or (b) the Xxxxxxx, Havana and Hennepin plants; provided that, subject to the terms of the Intercreditor Agreement, no ~~Excluded Subsidiary~~ Real Property located in the State of New York shall be required to ~~pledge any of its assets to~~ secure any Hedging Obligations, any obligations ~~of Borrower~~ arising under ~~the Credit Documents~~ any Treasury Services Agreement, any Revolving Loans or ~~guarantee the obligations of Borrower under the Credit Documents~~any other revolving facility. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, authorize, file and/or deliver to the Collateral ~~Agent~~Trustee from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory collateral assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, assignments, and other documents, assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents (other than Excluded Assets) as the Collateral Trustee may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Trustee with respect to additional Real Property collateral such opinions of counsel, Mortgage Policies and other related documentation of the type described on Schedule 13.16 as may reasonably be requested by the Administrative Agent or the Collateral ~~Agent reasonably necessary for~~ Trustee in order to assure itself that Section 9.10(a) has been complied with. Notwithstanding the ~~continued validity~~foregoing, ~~perfection~~ nothing in this Agreement shall require any Credit Party to make (i) any filings or take any other action to record or perfect the Collateral Trustee’s Lien in any intellectual property outside the United States and ~~priority~~ (~~subject~~ ii) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to ~~the terms~~ create any security interests in assets located or titled outside of the ~~ABL Intercreditor Agreement,~~ U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the ~~Pari Passu Intercreditor Agreement,~~ laws of any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentnon-U.S. jurisdiction). (dc) ~~If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation~~ Subject to ~~have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide~~ Section 13.16 (to the ~~Administrative Agent appraisals which satisfy~~ extent applicable), the ~~applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e)~~ Borrower agrees that each action required by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 9.10 shall be completed ~~in no event later than 90~~ within ninety (90) days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (as such time may be extended by the Administrative Agent or the Collateral Trustee, as applicable, in its reasonable discretion). (d) After the Closing Date, upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary (in each case, other than an Excluded Subsidiary) of the Borrower, (ii) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (iii) the designation in accordance with Section 9.11 of any existing direct or indirect Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary: (x) within sixty days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in writing in its reasonable discretion (I) cause each such Domestic Subsidiary that is required to become a Subsidiary Guarantor to duly execute and deliver to the Administrative Agent or the Collateral Trustee (as appropriate) joinders to the applicable Security Documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent ~~shall otherwise agree~~(consistent, ~~including~~ subject to local law requirements, with ~~respect to any Real Property acquired after~~ the Security Documents in effect on the Closing ~~Date~~ Date), in each case granting first-priority Liens (subject to Permitted Liens) required by this Section 9.10, (II) take and cause such Restricted Subsidiary that ~~Borrower has notified~~ is required to become a Subsidiary Guarantor to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral ~~Agent~~ Trustee to vest in the Collateral Trustee (or in any representative of the Collateral Trustee designated by it) valid and perfected Liens to the extent required by the Credit Documents, and to otherwise comply with the requirements in this Section 9.10 or the Security Documents and (III) cause each such Domestic Subsidiary that ~~it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be~~ is required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance become a Subsidiary Guarantor (and the ~~date by which any Credit Party~~ parent of each such Domestic Subsidiary that is ~~required~~ a Subsidiary Guarantor) to deliver ~~Mortgages hereunder shall automatically be extended~~ any and all certificates representing Equity Interests (to the extent ~~necessary to comply with the foregoing). Each of the parties hereto acknowledges~~ certificated) and ~~agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties~~ intercompany notes (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency~~certificated) that are required to be ~~a special flood hazard area~~pledged pursuant to Security Documents, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank. (ie) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything ~~in any Credit Document~~ to the ~~contrary~~contrary contained in this Section 9.10, if the ~~Collateral~~ Administrative Agent ~~or any Lender is~~ shall not ~~satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence~~require perfection in, and ~~determines it is in its best interest not to require a Mortgage on any Material Real Property,~~ the ~~Credit Parties~~ Borrower shall not be required to ~~grant~~ perfect, any assets as to which the Administrative Agent shall determine in its reasonable discretion that the cost of perfecting a ~~Mortgage on~~ security interest in such ~~Material Real Property~~ asset is excessive in ~~favor of such Person or otherwise comply with~~ relation to the ~~provisions~~ value of the security to be afforded thereby. (f) No Credit ~~Documents relating~~ Party shall be required to ~~Mortgages~~ obtain control agreements or perfect the Lien granted to the Collateral Trustee by “control” with respect to any Collateral (including deposit accounts, securities accounts, etc.) other than, to the extent constituting Collateral, certificated Equity Interests of the Borrower’s Restricted Subsidiaries and promissory notes. (g) No Credit Party shall be required to obtain landlord lien waivers, bailment lien waivers or estoppels letters with respect to any leased property of such ~~Material Real Property~~Credit Party. (h) Liens required to be granted from time to time pursuant to this Section 9.10 shall be subject to exceptions and limitations set forth in this Agreement and the other Credit Documents.

Appears in 2 contracts

Samples: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Lead Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC, (ii) security interests and Mortgages shall not be required with respect to any Real Property that is not Material Real Property and (iii) security interests and Mortgages shall not be required with respect to any assets or properties to the extent that such security interests or Mortgages would result in a material adverse tax consequence to the Lead Borrower or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. With respect to any Material Real Property not covered by the original Security Documents, the Lead Borrower will provide at least 45 days prior written notice prior to pledging any Material Real Property and will not execute any Mortgage on such Material Real Property until confirmation from all Secured Creditors that flood insurance due diligence and flood insurance as required by Section 9.03 hereto is complete. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Subsidiary of a CFC or FSHCO shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor ~~Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the ~~Guaranty Agreement and~~ Subsidiaries Guaranty, a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and a certificate attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit E with all appropriate insertions and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and~~ The Lead Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Lead Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) the Lead Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Lead Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided~~. (f) Upon request from the Administrative Agent, ~~further, that,~~ the Lead Borrower shall ~~give~~ provide the ~~Collateral~~ Administrative Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance ~~as required by~~ in accordance with Section 9.03 ~~hereof. Notwithstanding anything in~~ and any ~~Credit Document~~ additional information necessary to ~~the contrary, if the Collateral Agent or any Lender is not satisfied~~ ensure compliance with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyFlood Insurance Laws.

Appears in 2 contracts

Samples: Second Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower ~~will,~~ will and will cause each of the ~~Subsidiary Guarantors to,~~ Subsidiaries of the Borrower (other than Excluded Subsidiaries) to grant to the ~~Collateral~~ Administrative Agent for the benefit of the ~~Secured~~ Guaranteed Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and such other Credit Parties that are Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the Security Documents to which it is a party on the Closing Date ~~(other than assets constituting Excluded Collateral)~~ and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”), in each case, except for those assets and properties expressly excluded pursuant to the Security Documents (including in respect of Excluded Property (as defined in the Security Agreement)). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereunder or by the applicable Security Documents) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Collateral Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereby or by the applicable Security Documents) the Liens in favor of the ~~Collateral~~ Administrative Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under~~ paid in full by the Credit ~~Documents or guarantee the obligations of Borrower under the Credit Documents~~Parties. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes a ~~Restricted~~ Subsidiary of the Borrower (~~or ceases to be~~ other than an Excluded Subsidiary~~) after~~ ), the ~~Closing Date, Holdings and~~ Borrower ~~will, and~~ or the applicable Credit Party will ~~cause each applicable Restricted Subsidiary to,~~ (i) deliver to the ~~Collateral Agent~~ Administrative Agent, on the date of formation of such Subsidiary, the certificates, if any, representing all ~~(or such lesser amount as is required)~~ of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate ~~instruments of transfer~~ transfers duly executed ~~and delivered~~ in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement)blank, (ii) cause such ~~new Restricted Subsidiary (other than an Excluded~~ Subsidiary) , on or prior to the date of its formation, to (A) execute and deliver a Guaranty in form and substance reasonably acceptable to the Administrative Agent to become a Guarantor, (B) execute and deliver a joinder agreement to the ~~Guaranty~~ Security Agreement in form and substance reasonably acceptable to the Administrative Agent to become a ~~joinder agreement to each applicable Security Document, substantially in~~ grantor thereunder and pledge all of the ~~form annexed thereto~~assets and Equity Interests held by it, and (BC) take all actions reasonably necessary or advisable ~~in the opinion of the Administrative Agent or the Collateral Agent~~ to cause the Lien created by the ~~applicable~~ Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Security Agreement in accordance with all applicable ~~Requirements~~ requirements of ~~Law~~law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent~~ and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the other Credit Parties to~~, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, ~~promptly~~promptly (but in any event within the time periods set forth in Section 9.13 or such longer period as the Administrative Agent may reasonably agree), upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents~~ Documents, including “Life-of-Loan” flood hazard determinations and if applicable, executed Notices to ~~the extent~~ Borrower and evidence of flood insurance, mortgagee title policies, surveys, opinions of counsel, or otherwise deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Collateral Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a), (b) ~~through~~ and (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (10 days in the case of clause (b)) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Borrower or any ~~of its Restricted Subsidiaries~~ other Credit Party be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Credit Agreement, Credit Agreement (OCI Partners LP)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ Except as otherwise provided in Section 9.13, Borrower will, and will cause each of ~~the Subsidiary Guarantors~~ its Wholly-Owned Domestic Subsidiaries to, grant to the ~~Collateral Agent for the benefit of the Secured Creditors~~ Lender security interests and ~~Mortgages~~ mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such Wholly-Owned Domestic Subsidiaries as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by ~~the Collateral Agent~~ Lender (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and ~~Mortgages~~ mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance reasonably satisfactory to ~~the Collateral Agent~~ Lender and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall constitute, ~~upon taking all necessary perfection action~~ after appropriate filings have been made (~~which~~ to the ~~Credit Parties agree~~ extent required to ~~take pursuant to clause (e) below)~~ be so made), valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of ~~the Collateral Agent~~ Lender required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to Lender from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as Lender may reasonably require. Furthermore, Borrower will, and will cause the other Credit Parties to, deliver to ~~the extent deemed~~ Lender such opinions of counsel, title insurance and other related documents as may be reasonably requested by ~~the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ Lender to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If ~~the Administrative Agent or the Collateral Agent~~ Lender reasonably determines that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Borrower and its Subsidiaries constituting Collateral, Borrower will, at its own expense, provide to ~~the Administrative Agent~~ Lender appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to Lender. (ed) Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken ~~pursuant to such clauses~~ or is requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)taken, as the case may be~~; provided that~~, ~~in no event will Borrower or any~~ at the direction of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyLender.

Appears in 2 contracts

Samples: Credit Agreement (National Research Corp), Credit Agreement (National Research Corp)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case of Real Property, limited to Material Real Property)~~ of Holdings, the Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent (including, upon the reasonable request of the Administrative Agent, an opinion of counsel addressed to the Administrative Agent and the other Lenders reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(a) as the Administrative Agent may reasonably request (it being understood any opinion of counsel in substantially the form as the opinion of counsel delivered on the Closing Date pursuant to Section 6.03 shall be acceptable to the Administrative Agent)) and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (ed) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to ~~the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, on the Closing Date, or if later, not later than 45 days after becoming a Restricted Subsidiary (or ceasing to be an Excluded Subsidiary) Holdings and the Borrower will, ~~and~~ or will cause ~~each applicable~~ the Restricted Subsidiary ~~to,~~ to (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted Subsidiary~~Subsidiary issued to a Credit Party and required to be pledged pursuant to the Security Documents, 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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that the Borrower has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and the Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries to, at the expense of ~~Borrower~~Holdings, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly,~~ promptly upon the reasonable request of the Administrative Agent or the Collateral Agent, at ~~Borrower’s~~ Holdings’ expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) ~~through~~ and (dc) of this Section 9.12 shall be completed in no event later than 90 days (or such later time as the Administrative Agent may reasonably agree) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the Subsidiary Guarantors to~~, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents to the extent required thereunder and as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection (or the equivalent with respect to each Credit Party that is not a U.S. Credit Party, under Applicable Law) action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected (or the equivalent with respect to each Credit Party that is not a U.S. Credit Party under Applicable Law) security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, in each case, except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit ~~Document~~Document to the contrary, no FSHCO, Foreign Subsidiary (other than a Canadian Subsidiary and each other Subsidiary which becomes a Subsidiary Guarantor pursuant to the proviso to the definition of “Excluded Subsidiary”), or Domestic Subsidiary of a Foreign Subsidiary that is a CFC shall be required to ~~pledge~~ (i) pledge, nor shall the U.S. Collateral include, any of its assets ~~to secure any obligations of Borrower under the Credit Documents~~ or (ii) guarantee the ~~obligations of Borrower under the Credit Documents~~Obligations. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing ~~Date~~Date (including, ~~Holdings and Borrower will~~without limitation, ~~and will cause each~~ upon the formation of any Subsidiary that is a Division Successor), the applicable Credit Party that is the parent of such Restricted Subsidiary ~~to, (i) deliver to the Collateral Agent the certificates, if any, representing all (~~or ~~such lesser amount as is required) of the Equity Interests of~~ such Restricted Subsidiary, ~~together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by~~ as applicable, shall promptly (i) if a ~~duly authorized officer of the holder(s) of such Equity Interests~~Domestic Subsidiary, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Domestic Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty ~~Agreement~~ set forth herein to join as a Guarantor and a joinder agreement to each applicable Security Document, substantially in the form annexed ~~thereto,~~ thereto and (B) cause such new Domestic Subsidiary to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, (ii) if a Canadian Subsidiary or another Foreign Subsidiary which becomes a Subsidiary Guarantor pursuant to the proviso to the definition of “Excluded Subsidiary, cause such Subsidiary (other than an Excluded Subsidiary) (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Subsidiary Guarantor (and, in the case of a Canadian Subsidiary, a Canadian Subsidiary Guarantor), and to the Credit Party Guaranty set forth herein to join as a Subsidiary Guarantor (and, in the case of a Canadian Subsidiary, a Canadian Subsidiary Guarantor) and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto or to execute an applicable Security Document, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower will~~To the extent required under the Credit Documents, ~~and will cause~~ each of the ~~other Credit Parties to~~Lead Borrower and each Restricted Subsidiary will, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of~~ Lead Borrower and the ~~Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e)~~ Canadian Borrower agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, ~~the~~ Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, except with respect to Deposit Account Control Agreements, in no event will the Lead Borrower, the Canadian Borrower or any of ~~its~~ their Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each of Holdings, the MLP and the Borrower ~~will,~~ will and will cause each of the ~~Subsidiary Guarantors to,~~ Subsidiaries of the Borrower (other than Excluded Subsidiaries) to grant to the Collateral Agent for the benefit of the ~~Secured~~ Guaranteed Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and such other Credit Parties that are Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the Security Documents to which it is a party on the Closing Date ~~(other than assets constituting Excluded Collateral)~~ and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”), in each case, except for those assets and properties expressly excluded pursuant to the Security Documents (including in respect of Excluded Property (as defined in the Security Agreement)). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereunder or by the applicable Security Documents) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Collateral Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereby or by the applicable Security Documents) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under~~ paid in full by the Credit ~~Documents or guarantee the obligations of Borrower under the Credit Documents~~Parties. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes either (a) a ~~Restricted~~ direct or indirect Subsidiary of Holdings after the Closing Date that directly or indirectly owns any Equity Interests of the Borrower, including any MLP formed by Holdings in connection with any MLP Set-Up Transaction, or (~~or ceases to be~~ b) a Subsidiary of the Borrower (other than an Excluded Subsidiary~~) after the Closing Date~~), Holdings ~~and Borrower will, and~~ or the applicable Credit Party will ~~cause each applicable Restricted Subsidiary to,~~ (i) deliver to the Collateral ~~Agent~~ Agent, on the date of formation of such Subsidiary, the certificates, if any, representing all ~~(or such lesser amount as is required)~~ of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate ~~instruments of transfer~~ transfers duly executed ~~and delivered~~ in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement)blank, (ii) cause such ~~new Restricted Subsidiary (other than an Excluded~~ Subsidiary) , on or prior to the date of its formation, to (A) execute and deliver a Guaranty in form and substance reasonably acceptable to the Administrative Agent to become a Guarantor (in the case of MLP, which such form shall (i) be consistent with Section 14 and (ii) require that MLP make the representation and warranties (solely as to itself) contained in Section 8, (B) execute and deliver a joinder agreement to the ~~Guaranty~~ Security Agreement in form and substance reasonably acceptable to the Administrative Agent to become a ~~joinder agreement to each applicable Security Document~~grantor thereunder and pledge all of the assets and Equity Interests held by it, ~~substantially in~~ including 100% of the ~~form annexed thereto~~Equity Interests of the Borrower, and (BC) take all actions reasonably necessary or advisable ~~in the opinion of the Administrative Agent or the Collateral Agent~~ to cause the Lien created by the ~~applicable~~ Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Security Agreement in accordance with all applicable ~~Requirements~~ requirements of ~~Law~~law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the other Credit Parties to~~, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly~~promptly (but in any event within the time periods set forth in Section 9.13 or such longer period as the Administrative Agent may reasonable agree), upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents~~ Documents, including “Life-of-Loan” flood hazard determinations and if applicable, executed Notices to ~~the extent~~ Borrower and evidence of flood insurance, mortgagee title policies, surveys, opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Collateral Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a), (b) ~~through~~ and (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (10 days in the case of clause (b)) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Holdings or the Borrower or any ~~of its Restricted Subsidiaries~~ other Credit Party be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until . (if) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything ~~in any Credit Document~~ to the contrary, ~~if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or~~ this Section 9.12 shall cease to apply to Holdings and any of its Subsidiaries (other than the ~~deliveries referred~~ MLP and its Subsidiaries) from and after the Qualified MLP IPO; provided the MLP has acceded to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents ~~relating~~ as a Guarantor and has granted a perfected security interest in 100% of its equity in the Borrower to ~~Mortgages with respect to~~ secure the Obligations by such ~~Material Real Property~~time) and any Security Documents entered into by Holdings and any of its Subsidiaries (other than the MLP and its Subsidiaries) shall be released and terminated upon the Qualified MLP IPO.

Appears in 2 contracts

Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Except as otherwise provided in Section 9.14 and subject to (i) the exclusion of Billboard Real Estate as provided in Section 5.01(j)(ii), (ii) the exclusion of the Payroll Account and cash on deposit in the Payroll Account (as provided in the definition of Collateral), and (iii) the exclusion of Excluded Property (as defined in the Security Agreement), Borrower will, and will cause each of ~~the Subsidiary Guarantors~~ its Wholly-Owned Domestic Subsidiaries to, grant to the ~~Collateral Agent for the benefit of the Secured Creditors~~ Lender security interests and ~~Mortgages~~ mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such Wholly-Owned Domestic Subsidiaries as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents and execute and deliver to Lender such documents, agreements and instruments, and will take or cause to be taken such further actions (including, but not limited to, the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other ~~than assets constituting Excluded Collateral) and as~~ documents), all of which may be reasonably requested from time to time by ~~the Collateral Agent~~ Lender (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such ~~security interests and Mortgages~~ Additional Security Documents shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance satisfactory to ~~the Collateral Agent~~ Lender and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall constitute, ~~upon taking all necessary perfection action~~ after appropriate filings have been made (~~which~~ to the ~~Credit Parties agree~~ extent required to ~~take pursuant to clause (e) below)~~ be so made), valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of ~~the Collateral Agent~~ Lender required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to Lender from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as Lender may reasonably require. Furthermore, Borrower will, and will cause the other Credit Parties to, deliver to ~~the extent deemed~~ Lender such title insurance and other related documents as may be reasonably requested by ~~the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ Lender to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If ~~the Administrative Agent or the Collateral Agent~~ Lender reasonably determines that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~interest in Real Property owned by Borrower and its Subsidiaries constituting Collateral, Borrower will, at its own expense, provide to ~~the Administrative Agent~~ Lender appraisals ~~which~~ which, if required by law or regulation, satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to Lender. (ed) Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken ~~pursuant to such clauses~~ or is requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)taken, as the case may be~~; provided that~~, ~~in no event will Borrower or any~~ at the direction of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyLender.

Appears in 2 contracts

Samples: Credit Agreement (BOSTON OMAHA Corp), Credit Agreement (BOSTON OMAHA Corp)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case of Real Property, limited to Material Real Property)~~ of Holdings, the Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent (including, upon the reasonable request of the Administrative Agent, an opinion of counsel addressed to the Administrative Agent and the other Lenders reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(a) as the Administrative Agent may reasonably request (it being understood any opinion of counsel in substantially the form as the opinion of counsel delivered on the Closing Date pursuant to Section 6.03 shall be acceptable to the Administrative Agent)) and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (ed) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to ~~the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, on the Closing Date, or if later, not later than 45 days after becoming a Restricted Subsidiary (or ceasing to be an Excluded Subsidiary) Holdings and the Borrower will, ~~and~~ or will cause ~~each applicable~~ the Restricted Subsidiary ~~to,~~ to (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted Subsidiary~~Subsidiary issued to a Credit Party and required to be pledged pursuant to the Security Documents, 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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that the Borrower has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and the Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries to, at the expense of ~~Borrower~~Holdings, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly,~~ promptly upon the reasonable request of the Administrative Agent or the Collateral Agent, at ~~Borrower’s~~ Holdings’ expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) ~~through~~ and (dc) of this Section 9.12 shall be completed in no event later than 90 days (or such later time as the Administrative Agent may reasonably agree) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent~~, the Collateral Agent or the Required Lenders~~ . (~~or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to~~ e) Notwithstanding any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, other provision in ~~no event will Borrower~~ this Agreement or any ~~of its Restricted Subsidiaries be required~~ other Credit Document, Parent, Syncom-Iridium Holdings Corp. and/or Iridium Blocker-B. Inc. are permitted, at their discretion, to ~~take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give~~ guarantee the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Obligations by executing a joinder agreement to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseGuaranty Agreement, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to substantially in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyform annexed thereto.

Appears in 2 contracts

Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets ~~and properties~~ (~~in the case of Real Property, limited to Material~~ other than Real Property) of ~~Holdings, Borrower~~ the Borrowers and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit ~~Document,~~ Document (w) no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents, (x) no action shall be required to be taken by a Credit Party, or taken by any Agent or Lender, to perfect security interests in assets of the Credit Parties located outside of the United States or otherwise with respect to creation or perfection of Liens under foreign law, and (x) notices shall not be required to be sent to Account Debtors or other contractual third parties (other than third parties party to any Credit Document or during the continuance of an Event of Default). (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date~~, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to~~, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of Lead Borrower to, at the expense of Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) ~~Borrower agrees~~ The Borrowers agree that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ the Borrowers or any of ~~its~~ their Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Revolving Credit Agreement (VERRA MOBILITY Corp), Revolving Credit Agreement (VERRA MOBILITY Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Parent will, and will cause each ~~of the Subsidiary Guarantors to,~~ other Credit Party to grant to the ~~Collateral~~ Security Agent for the benefit of the Secured Creditors security interests and Mortgages in (i) the Mortgaged Properties listed on Schedule 8.12 attached hereto within 120 days (or such longer period as the Administrative Agent may agree) following the Effective Date and (ii) the other assets and ~~properties (in the case of Real Property, limited to~~ Material Real ~~Property)~~ Property of ~~Holdings, Borrower and the Subsidiary Guarantors as are~~ Parent or other Credit Party acquired after the ~~Closing~~ Effective Date as are not automatically subject to a Lien pursuant to pre-existing Security Documents, but solely to the extent that such other assets and Material Real Property would have been covered by the original Security Documents had such Credit Party owned them on the Effective Date, within 120 days (~~other than assets constituting Excluded Collateral~~or such longer period as the Administrative Agent may agree) ~~and~~ following Administrative Agent’s reasonable request therefor (or as otherwise may be ~~reasonably requested from time~~ required pursuant to ~~time by~~ the ~~Collateral Agent~~ Intercreditor Agreement), in each case subject to Permitted Liens and subject to the limitations and exceptions of the Security Documents (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”)~~. All~~ ; provided, however, that, the Borrower shall provide not less than 30 days’ prior written notice to the Security Agent (or such ~~security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents~~ shorter period as the ~~Collateral~~ Administrative Agent ~~may reasonably request~~shall agree) (which shall in turn promptly notify the Lenders) of any proposed execution and delivery of a Mortgage in respect of a Flood Hazard Property. Notwithstanding the foregoing or anything else contained herein, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agentthis Section 8.12(a) shall ~~constitute, upon taking all necessary perfection action~~ not apply to (~~which the Credit Parties agree to take pursuant to clause (e~~i) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any ~~Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons~~ owned Real Property other than ~~holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents~~ Material Real Property, (ii) any motor vehicles, or ~~instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect~~ (~~subject to exceptions as are reasonably acceptable to the Collateral Agent~~iii) ~~the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding~~ any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure any obligations of Borrower under~~ the ~~Credit Documents or guarantee the obligations of Borrower under the Credit~~ Security Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Parent will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral Agent~~Security Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon~~ financing statements (including, but not limited to, UCC fixture filings to be filed along with the ~~reasonable request~~ applicable Mortgages), transfer endorsements, powers of attorney, certificates, control agreements and other assurances or instruments to the ~~Administrative Agent~~ extent required by this Agreement or ~~the Collateral Agent, at Borrower’s expense,~~ any ~~document or instrument supplemental to or confirmatory~~ of the Security ~~Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity~~Documents, ~~perfection and priority (~~subject to the terms of the ~~ABL~~ Intercreditor Agreement; provided that in the case of any such agreements, assurances or instruments that require the ~~Pari Passu Intercreditor Agreement~~consent of, or any ~~Additional Junior Lien Intercreditor Agreement~~ action by, a third party, Parent and ~~any Additional Pari Passu Intercreditor Agreement)~~ the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same. Furthermore, in the case of additional Real Property Collateral, Parent will, and will cause the other Credit Parties to, deliver to the Security Agent such customary opinions of counsel in each jurisdiction in which the mortgaged Real Property is located with respect to the enforceability and perfection of the ~~Liens on~~ Mortgages in form and substance reasonably satisfactory to the ~~Collateral covered thereby subject~~ Security Agent, such customary corporate formalities opinions of counsel in each jurisdiction in which the Borrower or applicable Guarantor that owns the Mortgaged Property is formed or organized in form and substance reasonably satisfactory to ~~no other Liens except for Permitted Liens or as otherwise permitted by~~ the ~~applicable~~ Security ~~Document~~Agent, surveys, and First Priority Mortgage Policies with title insurance coverage reasonably satisfactory to the Security Agent. (c) [Reserved]. (d) If Prior to the ~~Administrative~~ date of delivery of any Mortgage, (i) the Security Agent shall have obtained a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property covered by such Mortgage, and (ii) in the event any portion of a Mortgaged Property includes a structure with at least two walls and a roof (a “building”) and, as shown in the related flood hazard determination, such building is located in a special flood hazard area (a “Flood Hazard Property”), then (A) the Security Agent shall deliver to the Borrower a notice about special flood hazard area status and flood disaster assistance (a “Flood Hazard Notice”), and (B) the Borrower or the ~~Collateral~~ relevant Credit Party, as applicable, shall deliver to the Security Agent ~~reasonably determines that it or the Lenders are~~ (1) a duly executed Flood Hazard Notice and (2) evidence of flood insurance required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amendedSection 8.03(c). (e) The Borrower agrees that each action required by clauses (a) through (d) of this Section ~~9.12~~ 8.12 shall be completed ~~in no event later than 90~~ within 120 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or such longer period of time as may be agreed to by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Parent or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents ~~from~~ from, or actions by, third parties with respect to its compliance with this Section ~~9.12; provided, further, that, Borrower shall give~~ 8.12. (f) Upon the ~~Collateral Agent 45 days written notice prior to granting~~ formation or acquisition of any ~~Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until~~ new Wholly-Owned Domestic Subsidiary that is a Restricted Subsidiary by any Credit Party: (i) within 60 days after such formation or acquisition (or such longer period as the ~~Collateral~~ Administrative Agent ~~has provided written notice~~ may agree in its sole discretion), the applicable Credit Party shall pledge the capital stock or other Equity Interests of such new Wholly-Owned Domestic Subsidiary (other than any Subsidiary the Equity Interests of which are not required to ~~Borrower~~ be pledged under the terms of the ~~completion of all required flood insurance due diligence~~ Security Agreement) pursuant to, and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent ~~necessary to comply with~~ required by, the ~~foregoing). Each of the parties hereto acknowledges~~ Security Agreement, and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall ~~be subject to (and conditioned upon) the prior delivery~~ deliver to the ~~Collateral~~ Security Agent ~~of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations~~ the certificates, if any, representing such stock or other Equity Interests, together with ~~respect to each Mortgaged Property and~~stock or other appropriate powers duly executed in blank, to the extent ~~any improved Mortgaged Property is located in an area determined~~ required by the ~~Federal Emergency Management Agency~~ Security Agreement, (ii) within 60 days after such formation or acquisition (or such longer period as the Administrative Agent may agree in its sole discretion), the Borrower shall cause each such new Wholly-Owned Domestic Subsidiary (other than any ~~successor agency~~Excluded Subsidiary) to be become a ~~special flood hazard area~~party to each of the Guaranty, ~~(i) delivery by~~ the ~~Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance~~ Security Agreement, the Intercompany Subordination Agreement and, if ~~such notice is delivered to Borrower at least two (2) Business Days prior to such grant~~applicable, ~~increase, extension or renewal~~execute a Control Agreement, a ~~duly executed acknowledgment of receipt thereof by Borrower~~ Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, and to acknowledge the Intercreditor Agreement, and (iiiii) ~~evidence~~ the Borrower shall, and shall cause each such new Wholly-Owned Domestic Subsidiary to, to the extent requested by the Administrative Agent, take all other actions required pursuant to this Section 8.12. In addition, each new Wholly-Owned Domestic Subsidiary that is required to become a Subsidiary Guarantor after the Effective Date shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including customary opinions of ~~flood insurance~~ counsel) of the type described in Sections 5.02, 5.03, and 5.04 as such new Wholly-Owned Domestic Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Effective Date. (g) In addition, promptly after any Restricted Subsidiary of the Borrower ceases to constitute an “Excluded Subsidiary” or a “Pass-Through Foreign Holding Company” in accordance with the respective definitions thereof, the Borrower shall cause such Restricted Subsidiary to take all actions required by Section ~~9.03 hereof. Notwithstanding anything in any Credit Document to the contrary~~8.12 as if such Restricted Subsidiary were then established, ~~if the Collateral Agent~~ created or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyacquired.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.), Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties (x) security interests ~~and Mortgages~~ in such assets ~~and properties (in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders; provided that such Credit Parties shall only be required to deliver such documentation and grant security interests in such assets as they would have been required to deliver if such Credit Party were a Credit Party on the Effective Date and (y) Mortgages in any Real Property of the Borrower and such other Credit Party acquired after the Effective Date; provided Real Property having a Fair Market Value of not more than $12.0 million in the aggregate shall be excepted from the requirements of this clause (y) (any such additional Mortgages, collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties that are Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, Surveys, Title Policies, reports, landlord waivers, bailee agreements and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries of the Borrower to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent or to assure itself that this Section 9.11 has been complied with. (c) The Collateral Agent shall have received for any Real Property constituting Collateral: (i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, ~~at Borrower’s expense, any document or instrument supplemental to or confirmatory~~ for the benefit of the ~~Security Documents~~ Secured Parties, duly executed and acknowledged by each Credit Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable requirements of law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent; (ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transaction or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property; (iii) with respect to each Mortgage, a policy of title insurance (or marked-up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount equal to not less than 105% of the Fair Market Value of such Mortgaged Property and fixtures, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent ~~deemed~~ necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), and (D) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the ~~Administrative Agent or~~ Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions but all such endorsements only if available at commercially reasonable rates and applicable); (iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the Title Policy/ies and endorsements contemplated above; (v) evidence reasonably ~~necessary~~ acceptable to the Collateral Agent of payment by the Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the ~~continued validity~~recording of the Mortgages and issuance of the Title Policies referred to above; (vi) with respect to each Mortgaged Property, ~~perfection and priority~~ copies of all Leases in which Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests, if any. To the extent any of the foregoing affect any Mortgaged Property, Borrower shall use commercially reasonable efforts, (~~subject~~ but shall not be required) to ensure that such agreement shall be subordinate to the ~~terms~~ Lien of the ~~ABL Intercreditor Agreement~~Mortgage to be recorded against such Mortgaged Property, ~~the Pari Passu Intercreditor Agreement~~either expressly by its terms or pursuant to a subordination, ~~any Additional Junior Lien Intercreditor Agreement~~ non-disturbance and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ attornment agreement, and shall otherwise be acceptable to the Collateral ~~covered thereby subject~~ Agent; (vii) Surveys with respect to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~each Mortgaged Property; and (viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property. (d) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 9.11 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its best efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~9.11. (f) To the extent such items have not been delivered as of the Effective Date, ~~further, that,~~ the Borrower shall ~~give the Collateral Agent 45 days written notice prior~~ use its commercially reasonable efforts to ~~granting any Mortgage~~ deliver to the ~~Collateral~~ Administrative Agent ~~for~~ the ~~benefit of~~ stock certificates identified on Schedule VIII as promptly as practible following the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyEffective Date.

Appears in 2 contracts

Samples: Credit Agreement (Shuffle Master Inc), Credit Agreement (Shuffle Master Inc)

Additional Security; Further Assurances; etc. ~~(a) Holdings and Borrower~~ The Borrowers will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings, Borrower~~ the Borrowers and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case of Real Property, limited to Material Real Property)~~ of Holdings, the Borrower and the Subsidiary Guarantors as are acquired after the ~~Closing~~ Amendment and Restatement Effective Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Original Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent (including, upon the reasonable request of the Administrative Agent, an opinion of counsel addressed to the Administrative Agent and the other Lenders reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(a) as the Administrative Agent may reasonably request (it being understood any opinion of counsel in substantially the form as the opinion of counsel delivered on the Original Closing Date pursuant to Section 6.03 shall be acceptable to the Administrative Agent)) and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (ed) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to ~~the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ any ~~Additional Junior Lien Intercreditor Agreement and any Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the ~~Closing~~ Amendment and Restatement Effective Date, on the Amendment and Restatement Effective Date, or if later, not later than forty-five (45) days after becoming a Restricted Subsidiary (or ceasing to be an Excluded Subsidiary) Holdings and the Borrower will, ~~and~~ or will cause ~~each applicable~~ the Restricted Subsidiary ~~to,~~ to (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted Subsidiary~~Subsidiary issued to a Credit Party and required to be pledged pursuant to the Security Documents, 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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that the Borrower has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and the Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries to, at the expense of ~~Borrower~~Holdings, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, ~~promptly,~~ promptly upon the reasonable request of the Administrative Agent or the Collateral Agent, at ~~Borrower’s~~ Holdings’ expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) ~~through~~ and (dc) of this Section 9.12 shall be completed in no event later than 90 days (or such later time as the Administrative Agent may reasonably agree) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent~~, the Collateral Agent or the Required Lenders~~ . (~~or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to~~ e) Notwithstanding any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, other provision in ~~no event will Borrower~~ this Agreement or any ~~of its Restricted Subsidiaries be required~~ other Credit Document, Parent, Syncom-Iridium Holdings Corp. and/or Iridium Blocker-B. Inc. are permitted, at their discretion, to ~~take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give~~ guarantee the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Obligations by executing a joinder agreement to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseGuaranty Agreement, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to substantially in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyform annexed thereto.

Appears in 2 contracts

Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)

Additional Security; Further Assurances; etc. (a) Holdings will (x) cause each Subsidiary Guarantor to execute the Subsidiaries Guaranty (or a joinder agreement thereto), and ~~Borrower will,~~ (y) and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in all assets that constitute Collateral (including any Mortgages of Holdings and ~~Mortgages in~~ such ~~assets and properties (in the case of Real Property, limited to Material Real Property~~other Credit Party) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages (if any) shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected (subject to Section 14.17) security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens including, in the case of any Collateral consisting of owned Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (subject to Section 14.17), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 10.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to ~~pledge any~~ grant a mortgage, deed of ~~its assets~~ trust or deed to secure debt (which shall be in form mutually satisfactory to Holdings and the Collateral Agent) in) any ~~obligations~~ owned Real Property the Fair Market Value of ~~Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~which is less than $250,000, any leasehold Real Property and any Excluded Property. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~the Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys (as to owned Real Property), reports, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require in accordance with the terms hereof. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance (as to owned Real Property) and other related documents as may be reasonably requested by the Administrative Agent or the Collateral Agent ~~reasonably necessary for the continued validity, perfection and priority~~ to assure itself that this Section 10.12 has been complied with. (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreementc) ~~of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~[Reserved]. (d) If the Administrative Agent, the Collateral Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~owned Real Property of Holdings and the other Credit Parties constituting Collateral, ~~Borrower~~ the Credit Parties will, at ~~its~~ their own expense, provide to the ~~Administrative Agent~~ Agents appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Agents. (e) ~~Borrower agrees~~ The Credit Parties agree that each action required by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 10.12 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such ~~longer period~~ later date as may be agreed by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04Agents in their sole discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~10.12. (f) In the event that any Credit Party or other Subsidiary of Holdings becomes an obligee or obligor with respect to any Intercompany Loan, ~~further~~such Credit Party or Subsidiary shall, ~~that~~within 30 days of the making of such Intercompany Loan, ~~Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ duly authorize, execute and deliver an Intercompany Note including subordinated provisions therein in respect of such Intercompany Loan to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyAgent.

Appears in 2 contracts

Samples: Credit Agreement (International Money Express, Inc.), Credit Agreement (Fintech Acquisition Corp. II)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Parent will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Parent and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 7.12(a) shall not apply to (and Parent and its Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any owned Real Property the Fair Market Value of ~~its assets~~ which is less than $750,000, any Leasehold for which the aggregate annual rental payments are less than $500,000 or any Leasehold with respect to ~~secure any obligations~~ which the respective Credit Party has not obtained (after using commercially reasonable efforts to obtain same) the consent of ~~Borrower under~~ the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~lessor to grant a mortgage in such Leasehold. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Parent will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~the Borrowers, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Parent will, and will cause the other Credit Parties that are Subsidiaries of Parent to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 7.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Parent and the other Credit Parties constituting Collateral, ~~Borrower~~ Parent and the Borrowers will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) ~~Borrower agrees~~ The Borrowers agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 7.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will ~~Borrower~~ Parent or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its best efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided, further, that, Borrower shall give the Collateral Agent 45~~ 7.12. (e) As promptly as possible but in any event within thirty (30) days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or ~~any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall~~ such later date as may be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined agreed upon by the ~~Federal Emergency Management Agency (or~~ Administrative Agent) after any ~~successor agency) to be~~ Person becomes a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any “Material ~~Real Property,~~ Foreign Subsidiary,” the Credit Parties shall ~~not be required to grant a Mortgage on such Material Real Property~~ provide the Administrative Agent with written notice thereof setting forth information in ~~favor~~ reasonable detail describing the material assets of such Person and such Credit Party shall take, or ~~otherwise comply with~~ cause to be taken, the ~~provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~actions set forth in Section 7.16.

Appears in 2 contracts

Samples: Credit Agreement (SAExploration Holdings, Inc.), Credit Agreement (SAExploration Holdings, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each of the MLP and the Borrower ~~will,~~ will and will cause each of the ~~Subsidiary Guarantors to,~~ Subsidiaries of the Borrower (other than Excluded Subsidiaries) to grant to the Collateral Agent and the Real Property Collateral Agent for the benefit of the ~~Secured~~ Guaranteed Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and such other Credit Parties that are Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the Security Documents to which it is a party on the Closing Date ~~(other than assets constituting Excluded Collateral)~~ and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”), in each case, except for those assets and properties expressly excluded pursuant to the Security Documents (including in respect of Excluded Property (as defined in the Security Agreement)). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereunder or by the applicable Security Documents) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Collateral Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral Agent~~Administrative Agent and solely to the extent required hereby or by the applicable Security Documents) the Liens in favor of the Collateral Agent and the Real Property Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under~~ paid in full by the Credit ~~Documents or guarantee the obligations of Borrower under the Credit Documents~~Parties. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes either (a) a ~~Restricted~~ direct or indirect Subsidiary of the MLP after the Closing Date that directly or indirectly owns any Equity Interests of the Borrower or (~~or ceases to be~~ b) a Subsidiary of the Borrower (other than an Excluded Subsidiary~~) after~~ ), the ~~Closing Date, Holdings and Borrower will, and~~ MLP or the applicable Credit Party will ~~cause each applicable Restricted Subsidiary to,~~ (i) deliver to the Collateral Agent (or the collateral agent under the Existing Term Loan Credit Agreement as bailee for the Collateral Agent pursuant to the First Lien Intercreditor Agreement), on the date of formation of such Subsidiary, the certificates, if any, representing all ~~(or such lesser amount as is required)~~ of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate ~~instruments of transfer~~ transfers duly executed ~~and delivered~~ in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement)blank, (ii) cause such ~~new Restricted Subsidiary (other than an Excluded~~ Subsidiary) , on or prior to the date of its formation, to (A) execute and deliver a Guaranty in form and substance reasonably acceptable to the Administrative Agent to become a Guarantor, (B) execute and deliver a joinder agreement to the ~~Guaranty~~ Security Agreement in form and substance reasonably acceptable to the Administrative Agent to become a ~~joinder agreement to each applicable Security Document~~grantor thereunder and pledge all of the assets and Equity Interests held by it, ~~substantially in~~ including 100% of the ~~form annexed thereto,~~ Equity Interests of the Borrower and (BC) take all actions reasonably necessary or advisable ~~in the opinion of the Administrative Agent or the Collateral Agent~~ to cause the Lien created by the ~~applicable~~ Security ~~Document~~ Agreement to be duly perfected to the extent required by the Security Agreement or the First Lien Intercreditor Agreement (the terms of such agreement to prevail in the event of conflict with the Security Agreement), in accordance with all applicable ~~Requirements~~ requirements of ~~Law~~law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the other Credit Parties to~~, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent (or, in the case of any Mortgaged Property, the Real Property Collateral Agent), ~~promptly~~promptly (but in any event within the time periods set forth in Section 9.13 or such longer period as the Administrative Agent may reasonably agree), upon the reasonable request of the Administrative Agent or the Collateral Agent (or, in the case of any Mortgaged Property, the Real Property Collateral Agent), at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents~~ Documents, including “Life-of-Loan” flood hazard determinations and if applicable, executed Notices to ~~the extent~~ Borrower and evidence of flood insurance, mortgagee title policies, surveys, opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent (or, in the case of any Mortgaged Property, the Real Property Collateral Agent) reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Collateral Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a), (b) ~~through~~ and (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (10 days in the case of clause (b)) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the MLP or the Borrower or any ~~of its Restricted Subsidiaries~~ other Credit Party be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Revolving Credit Agreement, Revolving Credit Agreement (OCI Partners LP)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Subsidiaries (other than International Subsidiaries) of the Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors as~~ such other Credit Parties that are ~~acquired after the Closing Date~~ Subsidiaries (other than ~~assets constituting Excluded Collateral~~International Subsidiaries) of the Borrower as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties that are Subsidiaries (other than International Subsidiaries) of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries (other than International Subsidiaries) of the Borrower to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 75 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its reasonable commercial efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property8.12.

Appears in 2 contracts

Samples: Credit Agreement (First Horizon Pharmaceutical Corp), Credit Agreement (First Horizon Pharmaceutical Corp)

Additional Security; Further Assurances; etc. (a) Subject to clause (e) of this Section 8.12, Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrower, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Initial Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ x) First Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Initial Intercreditor Agreement) perfected security interests, hypothecations and Mortgages with respect to Term Loan Priority Collateral and (y) Second Priority (subject to the ~~Pari Passu~~ terms of the Initial Intercreditor Agreement) perfected security interests, ~~any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement, superior~~ Mortgages with respect to ~~and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens~~ABL Facility Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrower, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 8.12(a) shall not apply to (and Holdings and its Restricted Subsidiaries shall not be required to grant a security interest or Mortgage in) (i) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of either the ABL Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 9.04(o) or (r), (ii) any motor vehicles, (iii) more than 65% of the voting Equity Interests of any CFC or Domestic Foreign Holding Company or (iv) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to ~~the terms~~ clause (e) of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Datethis Section 8.12, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon~~ financing statements (including, but not limited to, UCC fixture filings to be filed along with the ~~reasonable request~~ applicable Mortgages), transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for the continued validity~~require, ~~perfection and priority (~~subject to the terms of the ~~ABL~~ Initial Intercreditor Agreement; provided that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Holdings and the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any local law pledge and/or security agreements or taking other actions with respect thereto, be required. Furthermore, in the case of additional Real Property Collateral, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located, surveys or survey updates or ExpressMaps, as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without a standard survey exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the~~ Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that ~~it or~~ the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, subject to clause (e) of this Section 8.12, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 8.12, the Borrower ~~agrees~~ shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Holdings and the Borrower agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (or 30 days in the case of clauses (f) and (g) of this Section 8.12) after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or such longer period of time as may be agreed to by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Holdings or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents ~~from~~ from, or actions by, third parties with respect to its compliance with this Section ~~9.12; provided~~8.12. (f) Holdings will cause each Person that becomes a Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) and a Restricted Subsidiary after the Closing Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, ~~further~~and to the extent required by, ~~that, Borrower shall give~~ the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Security Agreement and deliver to the Collateral Agent ~~for~~ the ~~benefit of the Secured Creditors as required herein and shall not grant~~ certificates, if any, representing such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied stock or other Equity Interests, together with ~~the results thereof and~~ stock or other appropriate powers duly executed in blank, (ii) become a party to each of the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with Guaranty, the ~~results of any such due diligence or compliance~~ Security Agreement, the Intercreditor Agreements and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, and (~~and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended~~ iii) to the extent ~~necessary~~ requested by the Administrative Agent or the Required Lenders, take all actions required pursuant to ~~comply with the foregoing)~~this Section 8.12. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral ~~Agent~~ Agent, each new Wholly-Owned Domestic Subsidiary that is required to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in execute any Credit Document shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of counsel) of the ~~contrary~~type described in Section 5 as such new Wholly-Owned Domestic Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Closing Date. (g) In addition, if promptly after any applicable Wholly-Owned Domestic Subsidiary of the ~~Collateral Agent or any Lender~~ Borrower that is ~~not satisfied~~ a Restricted Subsidiary ceases to constitute an “Excluded Subsidiary” in accordance with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Propertyrespective definitions thereof, the ~~Credit Parties~~ Borrower shall ~~not be~~ cause such Subsidiary to take all actions required ~~to grant a Mortgage on~~ by this Section 8.12 as if such ~~Material Real Property in favor of such Person~~ Subsidiary were then established, created or ~~otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~acquired.

Appears in 2 contracts

Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Jill Intermediate LLC)

Appears in 2 contracts

Samples: Credit Agreement (NightHawk Radiology Holdings Inc), Credit Agreement (NightHawk Radiology Holdings Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral ~~Agent~~ Trustee for the benefit of the Secured ~~Creditors~~ Parties security interests and Mortgages in such assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors as are acquired after the Closing Date~~ such other Credit Party (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets) as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (collectively, as ~~may be~~ amended, ~~amended and~~ restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral ~~Agent~~ Trustee and ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent)~~ Borrower and shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law))) under applicable domestic law and perfected security interests, ~~subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement,~~ Mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent the assets subject to the applicable Additional Security Document can be perfected by the actions required by such Additional Security Document), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral ~~Agent~~ Trustee required to be granted pursuant to the Additional Security ~~Documents~~Documents and all material taxes, fees and other charges payable in connection therewith shall be paid in full to the extent due and owing. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 9.10(a) shall not apply to (and the Borrower and its Restricted Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any owned Real Property the Fair Market Value or book value of which (as reasonably determined by Borrower or such Subsidiary) is less than or equal to $40,000,000 (provided that the Borrower and its ~~assets~~ Restricted Subsidiaries shall not be required to ~~secure~~ grant a Mortgage in any ~~obligations of Borrower under~~ Real Property that the ~~Credit Documents or guarantee~~ Fair Market Value and book-value are less than the ~~obligations of Borrower under~~ foregoing threshold on the ~~Credit Documents~~Closing Date). (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, authorize, file and/or deliver to the Collateral ~~Agent~~Trustee from time to time such other documents, ~~promptly, upon the reasonable request of the Administrative Agent~~ assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents (other than Excluded Assets) as the Collateral Trustee may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Trustee with respect to additional Real Property collateral such opinions of counsel, Mortgage Policies and other related documentation of the type described on Schedule 13.16 as may reasonably be requested by the Administrative Agent or the Collateral ~~Agent reasonably necessary for~~ Trustee. Notwithstanding the ~~continued validity~~foregoing, ~~perfection~~ nothing in this Agreement shall require any Credit Party to make (i) any filings or take any other action to record or perfect the Collateral Trustee’s Lien in any intellectual property outside the United States and ~~priority~~ (~~subject~~ ii) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to ~~the terms~~ create any security interests in assets located or titled outside of the ~~ABL Intercreditor Agreement,~~ U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the ~~Pari Passu Intercreditor Agreement,~~ laws of any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentnon-U.S. jurisdiction). (dc) ~~If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation~~ Subject to ~~have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide~~ Section 13.16 (to the ~~Administrative Agent appraisals which satisfy~~ extent applicable), the ~~applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e)~~ Borrower agrees that each action required by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 9.10 shall be completed ~~in no event later than 90~~ within ninety (90) days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (as such time may be extended by the Administrative Agent or the Collateral Trustee, as applicable, in its reasonable discretion). (d) After the Closing Date, upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary (in each case, other than an Excluded Subsidiary) of the Borrower, (ii) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (iii) the designation in accordance with Section 9.11 of any existing direct or indirect Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary within ninety (90) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in writing in its reasonable discretion, the Borrower shall (I) cause each such Domestic Subsidiary that is required to become a Subsidiary Guarantor to duly execute and deliver to the Administrative Agent or the Collateral Trustee (as appropriate) joinders to the applicable Security Documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent, subject to local law requirements, with the Security Documents in effect on the Closing Date), in each case granting first-priority Liens (subject to Permitted Liens) required by this Section 9.10, (II) take and cause such Restricted Subsidiary that is required to become a Subsidiary Guarantor to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral Trustee to vest in the Collateral Trustee (or in any representative of the Collateral Trustee designated by it) valid and perfected Liens to the extent required by the Credit Documents, and to otherwise comply with the requirements in this Section 9.10 or the Security Documents and (III) deliver or cause each such Domestic Subsidiary that is required to become a Subsidiary Guarantor (and the parent of each such Domestic Subsidiary that is a Subsidiary Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be pledged pursuant to Security Documents, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank. (e) Notwithstanding anything to the contrary contained in this Section 9.10, the Administrative Agent shall ~~otherwise agree~~not require perfection in, ~~including~~ and the Borrower shall not be required to perfect, any assets as to which the Borrower and the Administrative Agent shall reasonably determine that the cost, burden, difficulty or consequences of perfecting a security interest in such asset is excessive in relation to the value of the security to be afforded thereby. (f) No Credit Party shall be required to obtain control agreements or perfect the Lien granted to the Collateral Trustee by “control” with respect to any ~~Real Property acquired after~~ Collateral (including deposit accounts, securities accounts, etc.) other than, to the ~~Closing Date that Borrower has notified~~ extent constituting Collateral, certificated Equity Interests of the ~~Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its~~ Borrower’s Restricted Subsidiaries and promissory notes. (g) No Credit Party shall be required to ~~take any action to~~ obtain ~~consents from third parties~~ landlord lien waivers, bailment lien waivers or estoppels letters with respect to ~~its compliance with~~ any leased property of such Credit Party. (h) Liens required to be granted from time to time pursuant to this Section ~~9.12; provided~~9.10 shall be subject to exceptions and limitations set forth in this Agreement and the other Credit Documents. (i) Notwithstanding anything to the contrary contained in this Agreement or any other Credit Document, ~~further, that, Borrower shall give the Collateral Agent 45 days written notice~~ any Investment in RJS prior to ~~granting any Mortgage~~ the RJS Merger Event in an amount exceeding $40,000,000 in the aggregate shall only be made by the Borrower or a Subsidiary Guarantor and shall be in the form of Indebtedness owed by RJS to the Borrower or a Subsidiary Guarantor and shall be evidenced by a promissory note, which shall be pledged to the Collateral ~~Agent~~ Trustee for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied Parties in accordance with the ~~results thereof~~ Guarantee and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyAgreement.

Appears in 2 contracts

Samples: Credit Agreement (PPL Energy Supply LLC), Credit Agreement (Talen Energy Holdings, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, (x) comply with the requirements of Section 9.17(f) and (y) grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets ~~and properties (in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary that is a CFC directly owned by the Lead Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC and (y) one hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC, and (ii) security interests shall not be required with respect to any assets to the extent that such security interests would result in a material adverse tax consequence to the Lead Borrower or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO, Foreign Subsidiary that is a CFC or a Subsidiary of a CFC shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of the Lead Borrower under the Credit ~~Documents~~Documents unless it becomes a Guarantor pursuant to the proviso to the definition of Excluded Subsidiary. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Subsidiaries Guaranty ~~Agreement~~ and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and a certificate attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit E with all appropriate insertions and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral ~~Agent and~~ Agent, (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably request~~reasonable request and (iv) comply with the requirements of Section 9.17(f). (c) ~~Holdings and~~ The Lead Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at the Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) The Lead Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Lead Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 2 contracts

Samples: Revolving Credit Agreement (PAE Inc), Revolving Credit Agreement (PAE Inc)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties (~~in the case of Real Property, limited to Material Real Property~~leased or owned) of ~~Holdings,~~ the Borrower and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent but otherwise subject to any limitations set forth in the Security Documents as to “excluded assets” (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 9.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) (x)(I) the Real Property at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 and (II) any owned Real Property the fair market value of ~~its assets to secure~~ which (as determined in good faith by the Borrower) is less than $5,000,000 or (y) any ~~obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Leasehold. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and the Borrower will, and ~~will cause each applicable Restricted Subsidiary to, (i) deliver to~~ the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower ~~will, and~~ will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~financing statements, ~~upon the reasonable request~~ transfer endorsements, powers of ~~the Administrative Agent~~ attorney and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for~~ require pursuant to this Section 9.12 to perfect (and maintain the ~~continued validity,~~ perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreementpriority) of the ~~Liens on~~ security interests in the Collateral ~~covered thereby~~ (but otherwise subject to ~~no other Liens except for Permitted Liens or~~ any limitations set forth in the Security Documents). With respect to any Mortgage, Holdings will cause to be delivered to the Collateral Agent such opinions of counsel, title insurance, surveys, and, if applicable, flood certifications as ~~otherwise permitted~~ may be reasonably requested by the ~~applicable Security Document~~Collateral Agent to assure itself that this Section 9.12 has been complied with. (dc) ~~If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared~~ Except as otherwise provided in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through clause (d) of this Section 9.12, Holdings and the Borrower agree that each action required above by this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 30 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or as such ~~longer period as~~ date may be extended by the Administrative Agent ~~or Collateral~~ in its sole discretion). (d) Within 15 Business Days (as such date may be extended by the Administrative Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in ~~no event will Borrower or any of~~ its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until sole discretion) (i) after the ~~Collateral~~ establishment, creation or acquisition of a Wholly-Owned Domestic Subsidiary, Holdings and the Borrower will cause such Wholly-Owned Domestic Subsidiary (x) to execute and deliver to the Administrative Agent ~~has provided written notice~~ a Joinder Agreement and (y) to ~~Borrower~~ deliver to the Administrative Agent such other relevant documentation of the ~~completion of all required flood insurance due diligence and flood insurance compliance which notice states that~~ type described in Section 6 as such Wholly-Owned Domestic Subsidiary would have had to deliver on the ~~Collateral~~ Initial Borrowing Date if it were a Credit Party on such date to the extent requested by the Administrative Agent ~~is satisfied with the results thereof~~ and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which after any Credit Party ~~is required~~ acquires any additional Equity Interests of any Subsidiary, such Equity Interests shall be pledged and delivered pursuant to ~~deliver Mortgages hereunder shall automatically be extended~~ (and to the extent ~~necessary~~ required by) the Pledge Agreement. (e) Within 90 days after the Initial Borrowing Date (as such date may be extended by the Administrative Agent in its sole discretion), Holdings and the Borrower will cause the License Subsidiary (x) to ~~comply~~ execute and deliver to the Administrative Agent a Joinder Agreement (with such changes thereto as may be approved by the ~~foregoing). Each~~ Administrative Agent in connection with any requirements that may be imposed by the applicable governmental authority approving the License Subsidiary entering into the Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement pursuant to the Joinder Agreement) and (y) to deliver to the Administrative Agent such other relevant documentation of the ~~parties hereto acknowledges and agrees that~~ type described in Section 6 as the ~~grant of any Mortgage~~ License Subsidiary would have had to deliver on ~~Mortgaged Property of~~ the Initial Borrowing Date if it were a Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, Party on such date to the extent ~~any improved Mortgaged Property is located in an area determined~~ requested by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyAdministrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Town Sports International Holdings Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Subject to clause (e) of this Section 9.12, Parent and ~~Borrower~~ the Company will, and will cause each of the ~~Subsidiary Guarantors~~ Company’s Subsidiaries to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrowers, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in~~ Real Property of Parent, the ~~case of Real Property, limited to Material Real Property) of Holdings, Borrower~~ Company and ~~the~~ such other Subsidiary ~~Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Intercreditor Agreements) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ i) First Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the Intercreditor Agreements) perfected security interests, hypothecations and Mortgages with respect to ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ Facility Priority Collateral and ~~any Additional Pari Passu Intercreditor Agreement, superior to and prior~~ (ii) Second Priority (subject to the ~~rights~~ terms of ~~all third Persons other than holders of Permitted Liens~~ the Intercreditor Agreements) perfected security interests, hypothecations and Mortgages with ~~priority by virtue of applicable law and subject~~ respect to ~~no other Liens except for Permitted Liens~~Term Loan Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrowers, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 9.12(a) shall not apply to (and Parent, the Company and its Subsidiaries shall not be required to grant a security interest or Mortgage in) (A) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of the Priming Term Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 10.04(r), (B) any motor vehicles, (C) [reserved] or (D) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to clause (e) of this Section 9.12, Parent and the Company will, and will cause each of the Company’s Subsidiaries to, at the expense of Parent and the Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such schedules, confirmatory assignments, financing statements (including, but not limited to, UCC fixture filings to be filed along with the applicable Mortgages), transfer endorsements, powers of attorney, certificates, collateral access agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require, subject to the terms of the ABL Intercreditor Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Parent, the ~~Pari Passu Intercreditor Agreement~~Company and its Subsidiaries shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any ~~Additional Junior Lien Intercreditor Agreement and~~ bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any ~~Additional Pari Passu Intercreditor Agreement,~~ local law pledge and/or security agreements or taking other actions with respect ~~to any Person that is or becomes a Restricted Subsidiary (or ceases to~~ thereto be ~~an Excluded Subsidiary) after~~ required. Furthermore, in the ~~Closing Date~~case of additional Real Property Collateral, ~~Holdings~~ Parent and ~~Borrower~~ the Company will, and will cause each ~~applicable Restricted Subsidiary~~ of the Company’s Subsidiaries to, ~~(i)~~ deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the ~~certificates~~mortgaged Real Property is located, ~~if any~~surveys or survey updates or ExpressMaps, ~~representing all~~ as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Collateral Agent to assure itself that this Section 9.12 has been complied with. (c) If the Administrative Agent reasonably determines that the Lenders are required by law or regulation to have appraisals prepared in respect of any Real Property of Parent, the Company and its Subsidiaries constituting Collateral, subject to clause (e) of this Section 9.12, Parent, the Company and its Subsidiaries will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 9.12, the Credit Parties shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrowers or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Parent, the Company and its Subsidiaries agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 60 days (or 30 days in the case of clauses (f) and (g) of this Section 9.12) after such action is requested to be taken by the Administrative Agent (or such ~~lesser amount~~ longer period of time as ~~is required)~~ may be agreed to by the Administrative Agent in its discretion); provided, that in no event will Parent, the Company or any of ~~the Equity Interests of such Restricted Subsidiary~~its Subsidiaries be required to take any action, ~~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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each casethan using its commercially reasonable efforts, to obtain consents from, or actions by, third parties with respect to its compliance with this Section 9.12. (f) Parent and the ~~extent required pursuant to the Security Agreement), (ii)~~ Company will cause ~~such new Restricted~~ each Person that becomes a Subsidiary (other than an Excluded Subsidiary) of the Company after the Effective Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, and to the extent required by, the Security Agreement and deliver to the Collateral Agent (or to its agent, bailee or designee, including the Collateral Agent under the Priming Term Loan Agreement in accordance with the terms of the Intercreditor Agreement) the certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, (ii) (A) execute a ~~joinder agreement~~ Joinder Agreement or such comparable documentation to ~~the Guaranty Agreement~~ become a Borrower or Guarantor hereunder and a joinder agreement to ~~each~~ the applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, ~~and~~ (B) take all actions reasonably necessary or advisable in the reasonable opinion of of, and requested by, the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (C) become a party to the ABL Intercreditor Agreement, the Subordination Agreement or any other intercreditor or subordination arrangement entered into pursuant to the terms hereof (if required thereby) and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent ~~deemed~~ reasonably requested by the Administrative Agent or the ~~Collateral Agent reasonably necessary for the continued validity~~Required Lenders, ~~perfection~~ take all actions required pursuant to this Section 9.12 and ~~priority~~ (~~subject~~ iv) at least five days prior to the ~~terms~~ effective date of any new Subsidiary of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject Company becoming a Borrower or Guarantor hereunder pursuant to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document.~~ clause (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expenseii), provide to ~~the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery~~ all Lenders all documentation and ~~Enforcement Act of 1989, as amended. (e) Borrower agrees that each action~~ other information required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agentbank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (Patriot Act and the ~~date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing)~~information described in Section 13.18. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral ~~Agent~~ Agent, each new Subsidiary of the Company that is required to ~~Borrower~~ execute any Credit Document shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of ~~a notice~~ counsel) of ~~special flood hazard area status and flood disaster assistance and,~~ the type described in Section 6 as such new Subsidiary of the Company would have had to deliver if such ~~notice is delivered~~ new Subsidiary were a Credit Party on the Effective Date. Notwithstanding the foregoing in this clause (f), (a) no Foreign Subsidiary shall be required to ~~Borrower at least two~~ enter into security documentation governed by the laws of the local jurisdiction of organization of such Foreign Subsidiary and (2b) ~~Business Days prior~~ no Credit Party that owns capital stock any Foreign Subsidiary shall be required to pledge the capital stock of such ~~grant~~Foreign Subsidiary pursuant to security documentation governed by the laws of the local jurisdiction of organization of such Foreign Subsidiary; provided, ~~increase~~that such Foreign Subsidiary shall execute the Guaranty and Security Agreement and such Credit Party shall pledge such capital stock pursuant to the Security Agreement. (g) In addition, ~~extension~~ promptly after any Subsidiary of Company ceases to constitute an “Excluded Subsidiary”, Company shall cause such Subsidiary to take all actions required by this Section 9.12 as if such Subsidiary were then established, created or ~~renewal, a duly executed acknowledgment of receipt thereof by~~ acquired. Each Borrower and each other Credit Party shall, within 90 days following the Effective Date (~~ii) evidence of flood insurance~~ as such date may be extended from time to time by the Administrative Agent in its sole discretion), enter into one or more Control Agreements as, and to the extent, required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.03(b).

Appears in 1 contract

Samples: Abl Credit Agreement (J.Jill, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such ~~assets~~ Collateral and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets) ~~and~~ as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively, as ~~may be~~ amended, ~~amended and~~ restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (the Borrower and, subject to exceptions as are reasonably acceptable to the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Agent) ), shall ~~constitute~~constitute valid, ~~upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and~~ enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), ) and perfected security interests (if and to the extent the assets subject to the ~~terms of~~ applicable Additional Security Document can be perfected by the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any~~ actions required by such Additional ~~Junior Lien Intercreditor Agreement~~ Security Document) and ~~any Additional Pari Passu Intercreditor Agreement,~~ Mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent such security interests can be perfected by the filings or other actions required under the Additional Security Documents), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 8.11(a) shall not apply to (and the Borrower and its Restricted Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any Leaseholds (regardless of ~~its assets~~ fair market value) or any owned Real Property the fair market value of which is less than $1,000,000 (as reasonably determined by Borrower or such Restricted Subsidiary and reasonably acceptable to ~~secure any obligations~~ the Administrative Agent); provided however that in no event shall the aggregate fair market value (as reasonably determined by Borrower) of ~~Borrower under~~ all owned Real Property not required to be subject to a Mortgage by operation of this sentence exceed $10,000,000 in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~aggregate. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the reasonable expense of the Borrower, make, execute, endorse, acknowledge, ~~file~~ authorize and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~conveyances, ~~upon the reasonable request~~ financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, bailee agreements, control agreements and other documents, assurances, opinions of counsel or instruments and take such further similar steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents to as the ~~extent deemed~~ Administrative Agent may reasonably require. Each Credit Party acknowledges that certain transactions contemplated by this Agreement and the other Credit Documents, and certain actions which may be taken by the Administrative Agent, the Collateral Agent or the ~~Collateral Agent reasonably necessary for~~ Lenders in the ~~continued validity~~exercise of their rights and remedies under this Agreement or any other Credit Document, ~~perfection and priority (subject to~~ may require the ~~terms~~ consent of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) FCC. If the Administrative Agent or the Collateral Agent (acting at the written direction of the Administrative Agent) reasonably determines that it the consent of the FCC is required in connection with the execution, delivery or performance of any of the aforesaid documents or any documents delivered to the Administrative Agent, the Collateral Agent or the Lenders in connection therewith or as a result of any action which may be taken or be proposed to be taken pursuant thereto, then each Credit Party, at its sole reasonable cost and expense, shall use its commercially reasonable efforts to secure such prior consent and to cooperate with the Administrative Agent, the Collateral Agent and the Lenders in any such action taken or proposed to be taken by the Administrative Agent, the Collateral Agent or any Lender. (c) If the Administrative Agent, the Collateral Agent (acting at the written direction of the Administrative Agent or the Required Lenders) or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Mortgaged ~~Property~~Property of the Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent and the Collateral Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Agent). (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.11 shall be completed ~~in no event later than 90~~ within sixty (60) days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or as such ~~longer period as~~ time may be extended by the Administrative Agent, the Collateral Agent (acting at the written direction of the Administrative Agent or ~~Collateral Agent shall otherwise agree~~the Required Lenders) or the Required Lenders in its or their discretion); provided, ~~including with respect to any Real Property acquired after the Closing Date~~ that ~~Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that,~~ in no event ~~will~~ shall the Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.11. (e) Within thirty (30) days (or such longer period of time as is acceptable to the Administrative Agent in any given case) after any Domestic Restricted Subsidiary of the Borrower ceases to constitute an Immaterial Subsidiary or a “U.S Foreign Holding Company” in accordance with the applicable definitions thereof, ~~further, that,~~ the Borrower shall ~~give~~ cause such Domestic Restricted Subsidiary to take all actions required as if such Domestic Restricted Subsidiary were then established, created or acquired. (f) Each new Wholly-Owned Domestic Restricted Subsidiary that is required to execute any Credit Document shall, within thirty (30) days (or such longer period of time as is acceptable to the Administrative Agent in any given case) after becoming a Wholly-Owned Domestic Restricted Subsidiary, upon the reasonable request of the Administrative Agent or the Collateral Agent ~~45 days~~ (acting at the written direction of the Administrative Agent), execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of counsel) of the type described in Sections 5.02, 5.03, 5.04, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13 and 5.17 as such new Restricted Subsidiary would have had to deliver if such new Restricted Subsidiary were a Credit Party on the Effective Date. (g) In the event (A) new Unrestricted Subsidiaries are established or created, or the Borrower or any of its Wholly-Owned Restricted Subsidiaries acquires Equity Interests in an Unrestricted Subsidiary (i) written notice ~~prior~~ thereof shall be given to ~~granting~~ the Administrative Agent and the Collateral Agent within thirty (30) days (or such longer period of time as is acceptable to the Administrative Agent in any ~~Mortgage~~ given case) thereafter, (ii) the Equity Interests (other than any Excluded Equity Interests) of such new Unrestricted Subsidiary held by any Credit Party shall be promptly pledged pursuant to, and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests, together with stock or other appropriate powers duly executed in blank, shall be delivered to the Collateral Agent ~~for the benefit of the Secured Creditors as required herein~~ as, and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent ~~necessary~~ required by, the Pledge Agreement, (iii) all Investments by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary shall be permitted pursuant to ~~comply with the foregoing). Each~~ Section 9.05 and (iv) all requirements of the ~~parties hereto acknowledges~~ definition of Unrestricted Subsidiary and ~~agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties~~ Section 8.14 shall have been satisfied, and (~~or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon~~B) the ~~prior delivery to the Collateral Agent of “life~~Borrower and its Wholly-~~of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property~~ Owned Restricted Subsidiaries establish, create and, to the extent ~~any improved Mortgaged Property is located in an area determined~~ permitted by ~~the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area~~this Agreement, acquire Wholly-Owned Restricted Subsidiaries (i) ~~delivery by~~ written notice thereof shall be given to the Administrative Agent and the Collateral Agent within thirty (30) days (or such longer period of time as is acceptable to ~~Borrower of a notice of special flood hazard area status and flood disaster assistance and~~the Administrative Agent in any given case) thereafter, ~~if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and~~ (ii) ~~evidence~~ the Equity Interests (other than any Excluded Equity Interests) of ~~flood insurance~~ such new Restricted Subsidiary shall be pledged within thirty (30) days (or such longer period of time as ~~required by Section 9.03 hereof. Notwithstanding anything~~ is acceptable to the Administrative Agent in any ~~Credit Document~~ given case) thereafter pursuant to, and to the ~~contrary~~extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests (other than any Excluded Equity Interests), together with stock or other appropriate powers duly executed in blank, shall be delivered to the Collateral Agent as, and to the extent required by, the Pledge Agreement, (iii) each such new Wholly-Owned Domestic Restricted Subsidiary (other than any Immaterial Subsidiary) shall within thirty (30) days (or such longer period of time as is acceptable to the Administrative Agent in any ~~Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any~~ given case) after becoming a Wholly-Owned Domestic Restricted Subsidiary execute a counterpart of the ~~deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property~~Subsidiaries Guaranty, the ~~Credit Parties shall not be required~~ Security Agreement and the Pledge Agreement and (iv) each such new Wholly-Owned Domestic Restricted Subsidiary (other than any Immaterial Subsidiary), to ~~grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with~~ the ~~provisions~~ extent requested by the Administrative Agent, the Collateral Agent (acting at the written direction of the ~~Credit Documents relating~~ Administrative Agent or the Required Lenders) or the Required Lenders, shall take all actions reasonably required pursuant to ~~Mortgages with respect to such Material Real Property~~this Section 8.11.

Appears in 1 contract

Samples: Credit Agreement (Radio One, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Issuer will, and will cause each of the Subsidiary Guarantors to, ~~grant to~~ at the ~~Collateral Agent for the benefit~~ joint and several expense of the ~~Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower~~ Issuer and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of BorrowerGuarantors, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Notes Collateral Agent ~~reasonably necessary for the continued validity~~from time to time such vouchers, ~~perfection and priority (subject to the terms~~ invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the ABL Intercreditor Agreement~~attorney, ~~the~~ certificates, Real Property surveys, Pari Passu Intercreditor ~~Agreement~~Memos, ~~any Additional Junior Lien Intercreditor Agreement~~ reports, landlord waivers, bailee agreements, control agreements and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ other assurances or instruments and take such further steps relating to the Collateral covered ~~thereby subject~~ by any of the Notes Collateral Documents as the Notes Collateral Agent may reasonably require. Furthermore, the Issuer will, and will cause the Subsidiary Guarantors to, deliver to no the Notes Collateral Agent such Opinions of Counsel, title insurance and other ~~Liens except for Permitted Liens or~~ related documents as ~~otherwise permitted~~ may be reasonably requested by the ~~applicable Security Document~~Notes Collateral Agent to assure itself that this Section 4.20 has been complied with. (db) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each Each action required by ~~clauses~~ clause (a~~) through (d~~) of this Section ~~9.12~~ 4.20 shall be completed as soon as possible, but in no event later than 90 the earlier of (i) the taking of any such action for the benefit of any Authorized Representative and (ii) 60 days (or with respect to any documentation related to Real Property, 120 days) after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the ~~Administrative Agent, the~~ Notes Collateral Agent or the ~~Required Lenders~~ Holders of at least 25% in aggregate principal amount of the Notes then outstanding (or as such ~~longer period as~~ date may be extended at the ~~Administrative Agent or~~ sole discretion of the Notes Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04Agent)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ the Issuer or any ~~of its Restricted Subsidiaries~~ Subsidiary Guarantor be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~4.20(b) or Section 4.20(a). (c) Subject to the limitations set forth in Article 10 hereof, ~~further~~the Issuer and the Subsidiary Guarantors shall, ~~that~~at their expense, ~~Borrower shall give~~ duly execute and deliver, or cause to be duly executed and delivered, such further agreements, documents and instruments, and do or cause to be done such further acts as may be reasonably necessary or proper to evidence, perfect, maintain and enforce the security interests and the priority thereof in the Collateral ~~Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent~~ for the benefit of First Lien Secured Parties and the ~~Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower~~ holders of the ~~completion~~ Revolving Credit Facility Obligations (with respect to the Second-Priority Collateral) and to otherwise effectuate the provisions or purposes of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (this Indenture and the ~~date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to~~ First Lien Security Documents. (d) The Issuer will comply with the ~~foregoing). Each~~ applicable provisions of the ~~parties hereto acknowledges~~ Trust Indenture Act as they relate to the Collateral. (e) The Issuer will (a) comply with Section 314(d) of the Trust Indenture Act, relating to the release of property and ~~agrees that~~ to the ~~grant~~ substitution therefor of any ~~Mortgage on Mortgaged Property~~ property to be pledged as Collateral for the Notes, and (b) cooperate with the Trustee in connection with the Trustee’s compliance with Section 313(b) of the ~~Credit Parties (~~Trust Indenture Act, relating to reports, whether or ~~any increase, extension~~ not this Indenture is qualified under the Trust Indenture Act. Any certificate or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as opinion required by Section ~~9.03 hereof~~314(d) of the Trust Indenture Act may be made by an officer of the Issuer except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert, who shall be reasonably satisfactory to the Trustee. Notwithstanding anything ~~in any Credit Document~~ to the ~~contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to~~ contrary in ~~the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property~~this paragraph, the ~~Credit Parties shall~~ Issuer will not be required to ~~grant a Mortgage on such Material Real Property in favor of such Person or otherwise~~ comply with ~~the provisions~~ all or any portion of Section 314(d) of the ~~Credit Documents relating~~ Trust Indenture Act if it determines, in good faith based on advice of counsel, that under the terms of Section 314(d) and/or any interpretation or guidance as to ~~Mortgages with respect to such Material Real Property~~the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) is inapplicable.

Appears in 1 contract

Samples: Indenture (WESTMORELAND COAL Co)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto (it being understood that the Permitted Liens described in Section 10.01(iv)(y) are subject to the terms of the Intercreditor Agreement). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 9.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any (x) owned Real Property the Fair Market Value of ~~its assets~~ which (including for this purpose, without limitation, all land, improvements and fixtures) is less than $1,000,000 or (y) any Leasehold (unless, in the case of either preceding clause (x) or (y), a Mortgage on any owned real property or a Leasehold is granted (or required to ~~secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b~~be granted) ~~Subject to the terms~~ in favor of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing DateSenior Secured Notes Collateral Agent). Furthermore, Holdings ~~and Borrower~~ will, and will cause ~~each applicable Restricted Subsidiary~~ the other Credit Parties that are Subsidiaries of Holdings to, ~~(i)~~ deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by~~ such ~~agreement in accordance with all applicable Requirements~~ opinions of ~~Law~~counsel, ~~including the filing of financing statements in such jurisdictions~~ title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause~~ to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in assure itself that this Section ~~9.12(b~~9.12(a) ~~as the Administrative Agent may reasonably request~~has been complied with. (cb) Holdings ~~and Borrower~~ will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral Agent, promptly, upon the reasonable request of the~~ Administrative Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Administrative Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the ~~extent deemed~~ Administrative Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by ~~law or regulation~~ any Requirement of Law to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) Holdings and the Borrower ~~agrees~~ agree that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or as such ~~longer period as~~ date may be extended by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its sole discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ . (e) In addition to the ~~Collateral~~ foregoing, within 60 days after the Effective Date (as such date may be extended by the Administrative Agent ~~for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until~~ in its sole discretion), (i) the ~~Collateral~~ Borrower shall have used its commercially reasonable efforts to deliver to the Administrative Agent ~~has provided written notice to Borrower~~ fully executed landlord waivers (the provisions of which also shall include collateral access arrangements) in respect of those Leaseholds of the ~~completion~~ Borrower or any of ~~all required flood insurance due diligence~~ its Subsidiaries designated as “Leaseholds Subject to Landlord Waivers” on Schedule XIV, each of which landlord waivers shall be in form and ~~flood insurance compliance which notice states that~~ substance reasonably satisfactory to the ~~Collateral~~ Administrative Agent ~~is satisfied with the results thereof~~ and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is Collateral Agent shall have received fully executed deposit account control agreements required to ~~deliver Mortgages hereunder shall automatically~~ be delivered under Section 3.9 of the Security Agreement. (f) In addition to the foregoing, within 5 Business Days after the Effective Date (as such date may be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent ~~to Borrower of a notice of special flood hazard area status and flood disaster assistance and~~in its sole discretion), if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent ~~or any Lender is not satisfied~~ shall have received certificates of insurance complying with the ~~results~~ requirements of ~~any flood insurance due diligence or flood insurance compliance or any~~ Section 9.03 for the business and properties of Holdings and its Subsidiaries, in form and substance reasonably satisfactory to the ~~deliveries referred to in~~ Administrative Agent and naming the ~~immediately preceding sentence~~Collateral Agent as an additional insured and/or as loss payee, and ~~determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties~~ stating that such insurance shall not be ~~required~~ canceled or materially revised without at least 30 days’ prior written notice by the insurer to ~~grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with~~ the ~~provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~Collateral Agent.

Appears in 1 contract

Samples: Short Term Credit Agreement (CURO Group Holdings Corp.)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties to, grant to the Collateral Agent for the benefit of the ~~Secured Creditors~~ Lenders security interests and Mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Collateral Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Agent (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “Additional ~~Security~~ Collateral Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional ~~Security~~ Collateral Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional ~~Security Documents~~Collateral Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision~~ anything to the contrary contained above in this ~~Agreement or any~~ Section 5.11(a), so long as the aggregate fair market value of all fee owned Real Estate that is not subject to a Mortgage does not exceed $20,000,000, then Borrower and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall only be required to ~~pledge any~~ grant a Mortgage with respect to fee owned Real Estate which has a fair market value at the time of ~~its assets to secure any obligations~~ acquisition thereof of ~~Borrower under the Credit Documents~~ $750,000 or ~~guarantee the obligations of Borrower under the Credit Documents~~more. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of ~~the other Credit Parties~~ its Subsidiaries to, at the expense of Holdings and Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, UCC financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the ~~Administrative~~ Agent to assure itself that this Section 5.11 has been complied with. (c) If the Agent or the ~~Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent~~ Requisite Lenders reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of ~~any Mortgaged Property~~the Real Estate of Holdings and its Subsidiaries constituting Collateral, Holdings and Borrower will, at ~~its~~ their own expense, provide to the ~~Administrative~~ Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Agent. (ed) Holdings and Borrower ~~agrees~~ agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 5.11 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the ~~Administrative Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beRequisite Lenders; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.11.

Appears in 1 contract

Samples: Credit Agreement (Nextmedia Operating Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ Subject to the terms herein, the Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties security interests and Mortgages in such assets and ~~properties (in~~ Collateral of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors as are~~ such other Credit Party acquired after the ~~Closing~~ Effective Date ~~(other than assets constituting Excluded Collateral)~~ as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”)~~Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and the Borrower (~~subject to exceptions as are reasonably acceptable to~~ including, in the ~~Collateral Agent) shall constitute~~case of Real Property, ~~upon taking all necessary perfection action (which the Credit Parties agree to take~~ pursuant to ~~clause~~ Mortgages and other Real Property Deliverables, (~~e) below)~~ collectively, the “Additional Security Documents”)and shall constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (if and to the extent perfection is required by the Security Documents) superior to and prior to the rights of all third Persons, subject to Permitted Liens and subject to the terms of the Intercreditor Agreement, and enforceable against third parties (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law ) and subject to no other Liens except for Permitted ~~Liens~~Liens and subject to the terms of the Intercreditor Agreement. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed (if and to the extent perfection is required by the Security Documents) in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent perfection is required by the Security Documents), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges then due, owing and payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, (i) this ~~Agreement or any~~ Section 9.12(a) shall not apply to (and the Borrower and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall not be required to ~~pledge~~ grant a Mortgage in) any fee owned Real Property the Fair Market Value of ~~its assets~~ which is less than $1,000,000, any Leasehold subject to ~~secure~~ a ground lease, the Fair Market Value of which is less than $1,000,000 any ~~obligations~~ Leasehold (other than ground leases) for which the aggregate annual rental payments are less than $1,000,000 or any Leasehold with respect to which the respective Credit Party has not obtained (after using commercially reasonable efforts to obtain same) the consent of ~~Borrower under~~ the lessor to grant a mortgage in such Leasehold and (ii) this Section 9.12(a) shall not require any Credit ~~Documents or guarantee the obligations of Borrower under the Credit Documents~~Party to grant any security interest in any Excluded Property. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require to create and perfect (and maintain the perfection and priority), if and to the extent ~~deemed~~ perfection is required by the ~~Administrative Agent or~~ Security Documents, of the security interests in the Collateral (but otherwise subject to any limitations set forth in this Agreement and the other Credit Documents). Furthermore, the Borrower will cause to be delivered to the Collateral Agent such opinions of counsel, title insurance, surveys, and, if applicable, flood certifications as may be reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and the other Credit Parties constituting Collateral, ~~Borrower~~ the Administrative Agent will, at ~~its own~~ the Borrower’s expense, ~~provide to the Administrative Agent~~ order appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (d) and clause (e)(ii) of this Section 9.12 shall be completed in no ~~event~~ later than 90 60 days ~~after~~ (as such ~~action is required to~~ date may be ~~taken pursuant to such clauses or requested to be taken~~ extended by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders (or~~ in its sole discretion) after acquisition of such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beassets; provided that, in no event will the Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided, further, that, Borrower shall give~~ . (e) Within 15 Business Days (as such date may be extended by the ~~Collateral~~ Administrative Agent ~~45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until~~ in its sole discretion) (i) after the ~~Collateral Agent has provided written notice to Borrower~~ establishment, creation or acquisition of a Wholly-Owned Domestic Restricted Subsidiary of the ~~completion~~ Borrower (other than a Excluded Subsidiary; provided that, notwithstanding the foregoing, any Domestic Subsidiary of ~~all~~ the Borrower that guarantees the Existing Revolving Credit Agreement or any Permitted Refinancing thereof shall be required ~~flood insurance due diligence~~ to be a Guarantor hereunder for so long as it guarantees such Indebtedness), the Borrower shall cause such Wholly-Owned Domestic Restricted Subsidiary (x) to execute and ~~flood insurance compliance which notice states that~~ deliver to the ~~Collateral~~ Administrative Agent ~~is satisfied~~ a supplement to the Guaranty and Security Agreement and (y) to deliver to the Administrative Agent such other relevant documentation of the type described in Section 6 as such Wholly-Owned Domestic Restricted Subsidiary would have had to deliver on the Effective Date if it were a Credit Party on such date to the extent requested by the Administrative Agent or Section 9.12 with ~~the results thereof~~ respect to any Real Property owned by such Wholly-Owned Domestic Restricted Subsidiary and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which after any Credit Party ~~is required~~ acquires any additional Equity Interests of any Restricted Subsidiary, such Equity Interests shall be promptly pledged and delivered pursuant to ~~deliver Mortgages hereunder shall automatically be extended~~ (and to the extent ~~necessary to comply with~~ required by) the ~~foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase~~Security Agreement, ~~extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is~~ subject to ~~a Mortgage) shall be subject to (and conditioned upon)~~ the ~~prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and~~Intercreditor Agreement; provided that, ~~to the extent~~ notwithstanding any ~~improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (~~other provision herein or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any other Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to a Subsidiary of the Borrower that is a CFC or CFC Holdco, in no event shall more than 65% of the voting stock (and 100% of the non-voting stock) of such ~~Material Real Property~~entity be pledged.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Arc Document Solutions, Inc.)

Additional Security; Further Assurances; etc. The Borrower and each other Credit Party shall promptly following the creation, formation, or acquisition of any Subsidiary (other than any Excluded Subsidiary) and, in any event, within sixty (60) days, (as such time period may be extended by the Administrative Agent in its sole discretion) cause such Subsidiary now existing or created, formed or acquired to (a) ~~Holdings~~ to the extent such Subsidiary is party to any Intercompany Loan that is evidenced by a note that is required to be delivered to the Administrative Agent pursuant to Section 6.05(f), cause such Subsidiary to deliver such note to the Administrative Agent, (b) to the extent such Subsidiary is not a Subsidiary Guarantor, notify the Administrative Agent and ~~Borrower will~~the Lenders of the creation, formation, or acquisition of such Subsidiary and, upon the reasonable request of the Administrative Agent or the Required Lenders, cause such Subsidiary to become a party to the Guaranty and grant a security interest in the Equity Interests (other than Equity Interests constituting Excluded Assets) owned by such Subsidiary by delivering to the Administrative Agent a duly executed supplement to the Security Agreement or such other document as the Administrative Agent shall deem appropriate for such purpose, (c) upon the request of the Administrative Agent or the Required Lenders, deliver to the Administrative Agent any Certificated Securities issued by such Subsidiary, if any, and ~~will cause~~ assignments related thereto, in each of case, to the ~~Subsidiary Guarantors to~~extent required by the Security Agreement, ~~grant~~ (d) deliver to the Administrative Agent such updated schedules to the Credit Documents as reasonably requested by the Administrative Agent with respect to such Subsidiary, (e) deliver to the Administrative Agent counterparts, joinders or similar documents with respect to the Guaranty, the Security Agreement and the Intercompany Subordination Agreement and (f) deliver to the Administrative Agent such other security documents with respect to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested ~~from time to time~~ by the ~~Collateral~~ Administrative Agent, including with respect to any Real Property with a fair market value above $1,000,000, to the extent reasonably requested by the Administrative Agent and in compliance with Applicable Law, Real Property Deliverables, all in form, content and scope reasonably satisfactory to the Administrative Agent (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests ~~and Mortgages (except to~~ in the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor AgreementCollateral, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other ~~Liens except for~~ Liens, in each case other than Permitted Liens. ~~The~~ To the extent required pursuant to the Credit Documents, the Additional Security Documents or ~~instruments~~ instruments, filings or documents related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all material Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Credit Agreement (Great Ajax Corp.)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ The Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary or a Canadian Subsidiary, ~~and~~ but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests ~~and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought~~ in ~~equity or at law)), subject to the terms~~ such Collateral of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ Borrower and ~~any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority~~ such Restricted Subsidiaries as are not covered by ~~virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional~~ Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary or a Canadian Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit C hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Closing Date with respect to the Security Documents delivered on the Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitations set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at the Borrower’s 's expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be~~; provided that~~. (e) If any Credit Party shall open or acquire new Deposit Accounts in the United States, ~~in no event will Borrower or any~~ such Credit Party use of ~~its Restricted Subsidiaries be required~~ commercially reasonable efforts to ~~take any action~~ execute and deliver to ~~obtain consents from third parties~~ the Administrative Agent appropriate Deposit Account Control Agreements (except with respect to ~~its compliance with this Section 9.12; provided~~Excluded Accounts), ~~further, that, Borrower shall give~~ within ninety (90) days of the opening or acquisition thereof (as may be extended by the Administrative Agent acting reasonably). (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Closing Date (or, in each such case, with respect to any Person that is or becomes after the Closing Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of the Mortgages, if any, delivered to the Collateral Agent with respect to the Material Real Property set forth on Schedule 7.12 as of the Closing Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an "Additional Mortgage"), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage and any instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all mortgage recording taxes, intangibles and stamp taxes, fees, charges, costs and expenses required for the recording of the Additional Mortgages, fixture filings and other instruments related thereto required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 1 contract

Samples: Credit Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, this Section 5.12(a) shall not (i) apply to any ~~other provision~~ Excluded Collateral or (ii) require any Credit Party to grant a Mortgage in ~~this Agreement~~ (x) any Leasehold, (y) any owned Real Property the book value of which is less than $2,500,000 or (z) any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsREO Property. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries of the Borrower to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Administrative Agent or to assure itself that this Section 5.12 has been complied with. (c) With respect to any owned Real Property with respect to which a Mortgage is delivered pursuant to this Section 5.12, Borrower will promptly (i) if requested by the Collateral Agent, provide the Lenders with a Mortgage Policy covering such real property in an amount at ~~Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents~~ least equal to the ~~extent deemed~~ purchase price of such real property (or such other amount as shall be reasonably specified by the ~~Administrative Agent or~~ Collateral Agent) as well as an ALTA survey thereof certified to the Collateral Agent in form reasonably ~~necessary for the continued validity, perfection and priority (subject~~ satisfactory to the ~~terms~~ Collateral Agent and (ii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent. No later than three Business Days prior to the date on which a Mortgage is executed and delivered pursuant to this Section 5.12(c), in order to comply with the Flood Laws, the Collateral Agent shall have received the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the ~~ABL Intercreditor Agreement~~Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the ~~Pari Passu Intercreditor Agreement~~borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent (any ~~Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement)~~ of the ~~Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~foregoing being “Evidence of Flood Insurance”). (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 5.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.12.

Appears in 1 contract

Samples: First Lien Credit Agreement (Walter Investment Management Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ US Company will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors ~~security interests~~ Liens, hypothecs and Mortgages in such assets and ~~properties (in the case~~ owned Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ US Company and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such ~~security interests~~ Liens, hypothecs and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected ~~security interests~~ Liens, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto (provided that Administrative Agent’s Liens on the LKE Joint Accounts need not be perfected). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. ~~Notwithstanding~~ In connection with the delivery of any ~~other provision in this Agreement or any other Credit Document~~Mortgage, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower US Company will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party ~~together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case~~to, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested from time to time by the Administrative Agent or the ~~Collateral Agent and~~ Required Lenders, deliver (~~iii~~i) ~~at the reasonable request of~~ a Mortgage Policy issued by a title insurer reasonably satisfactory to the Administrative Agent, ~~deliver or cause to be delivered~~ in form and substance and in an amount reasonably satisfactory to the Administrative Agent insuring that the Mortgage is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances, (ii) a then current A.L.T.A. survey, certified to the Administrative Agent by a licensed surveyor sufficient to allow the issuer of the Mortgage Policy to issue such Mortgage Policy without a survey exception, (iii) an ~~opinion~~environmental site assessment prepared by a qualified firm reasonably acceptable to the Agent, ~~addressed~~ in form and substance satisfactory to the Administrative Agent and ~~the other Lenders, of counsel~~ (iv) a certificate in a form reasonably acceptable to the Administrative Agent as indicating that the property is not in a flood zone, or if the property is in a flood zone, evidence that appropriate insurance reasonable acceptable to ~~such matters set forth in this Section 9.12(b) as~~ the Administrative Agent ~~may reasonably request~~has been obtained. Notwithstanding the foregoing, this Section 9.13(a) shall not apply to (and US Company and the other Credit Parties shall not be required to grant a Mortgage in) any Real Property the Fair Market Value of which is less than $2,500,000 or the Equivalent Amount thereof. (cb) ~~Holdings and Borrower~~ US Company will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~US Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for~~ require. Furthermore, US Company will, and will cause the ~~continued validity~~other Credit Parties to, ~~perfection and priority (subject~~ deliver to the ~~terms~~ Collateral Agent such opinions of ~~the ABL Intercreditor Agreement~~counsel, ~~the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ title insurance and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ other related documents as may be reasonably requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.13 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of US Company and the other Credit Parties constituting Collateral, ~~Borrower~~ US Company will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) ~~Borrower~~ US Company agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 9.13 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will ~~Borrower~~ US Company or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section. (e) Notwithstanding anything contained in this Section ~~9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ 9.13 or this Agreement to the ~~Collateral Agent for the benefit of the Secured Creditors as required herein and~~ contrary, in no event shall ~~not grant such Mortgage until~~ (i) the ~~Collateral Agent has provided written notice to Borrower~~ assets of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the ~~deliveries referred~~ UK Company or any other Foreign Subsidiary be pledged to secure the US Obligations or (b) more than 65% of the voting securities of any Foreign Subsidiary held by the US Company or any Domestic Subsidiary be pledged to secure the US Obligations. (f) Each Subsidiary that is a Domestic Subsidiary (other than any holding company or shell company without any assets constituting a portion of the Borrowing Base and other than any other Subsidiary reasonably agreed by the Administrative Agent) shall become a party to this Agreement as a US Borrower on or prior to the date which is 21 days following the Closing Date, in each case by executing and delivering to the ~~immediately preceding sentence~~Administrative Agent a counterpart of a Joinder Agreement, and ~~determines it~~ delivering to the Administrative Agent a counterpart to each US Revolving Note and the US Swingline Note. (g) Each Subsidiary that is ~~in its best interest not to require~~ a ~~Mortgage on~~ UK Subsidiary (other than any ~~Material Real Property, the Credit Parties shall not be required to grant~~ holding company or shell company without any assets constituting a ~~Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions~~ portion of the ~~Credit Documents relating~~ Borrowing Base and other than any other Subsidiary reasonably agreed by the Administrative Agent) shall become a party to ~~Mortgages with respect~~ this Agreement as a UK Borrower on or prior to ~~such Material Real Property~~the date which is 21 days following the Closing Date, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement and delivering to the Administrative Agent a counterpart to each UK Revolving Note and the UK Swingline Note.

Appears in 1 contract

Samples: Abl Credit Agreement (Mobile Mini Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ The Borrower and each Parent Guarantor will cause: (i) each (A) Wholly-Owned Domestic Subsidiary thereof or any other Person that becomes a Wholly-Owned Domestic Subsidiary thereof after the Closing Date (in each case, other than any Excluded Subsidiary) and (B) Wholly-Owned Domestic Subsidiary that ceases to be an Excluded Subsidiary; (ii) each Restricted Subsidiary or other Person that is not a Guarantor but is or becomes an obligor in respect of, or grants a security interest in any of its assets to support, the ABL Obligations, the New Intabex Loan Obligations (other than the guarantee by the Specified Obligors of the New Intabex Loan Obligations and any Permitted Refinancing Indebtedness in respect thereof), the New Notes Obligations or the Existing Notes Obligations (and any Permitted Refinancing Indebtedness of the foregoing); and (iii) any direct or indirect parent entity of the Borrower that is formed after the Closing Date; in each case, promptly, but no later than 60 days after the date on which such Person became a Wholly-Owned Domestic Subsidiary, ceased to be an Excluded Subsidiary, became an obligor or granted a security interest as described in clause (ii), or was formed, as applicable (as such date may be extended by the Required Lenders in their sole discretion), to (A) become a Guarantor as described in the Guarantee Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit A and (B) grant security interests over any Collateral as described in the Pledge and Security Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit 10 or, in the case of any such Person that not is formed under the laws of the United States or any state of the United States or the District of Columbia, as described in such other applicable Security Document or as may be customary in such Person’s jurisdiction of formation. (b) The Borrower may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Guarantor to become a Guarantor, in which case such Subsidiary shall comply with the requirements in Section 5.13(a) above, other than the 60 day period described therein. (c) Subject to Section 5.15 and the applicable Security Document, the Parent Guarantors, the Borrower and their Subsidiaries will cause (i) 100% of the Equity Interests of New Pyxus Parent, the Borrower and each Subsidiary that is a Subsidiary Guarantor, (ii) 100% of the Equity Interests of each Domestic Subsidiary owned directly by any Loan Party (or, if less, the full amount owned by the Loan Parties) and (iii) (x) 100% of the Equity Interests of each Foreign Subsidiary owned directly by any Foreign Guarantor (or, if less, the full amount owned by such Foreign Guarantor) and (y) 65% of the aggregate of the total outstanding Voting Stock (and 100% of each class of issued and outstanding Equity Interest other than Voting Stock) of each Foreign Subsidiary (that is not a Loan Party) held directly by the Borrower, any Parent Guarantor or any Subsidiary Guarantor that is a Domestic Subsidiary (or, if less, the full amount owned by the Borrower, such Parent Guarantor and each such Subsidiary Guarantor) (except, in each case of this clause (c), to the extent constituting Excluded Assets), in each case, to be subject at all times to a perfected Lien in favor of the Senior Collateral Agent for the ratable benefit of the Senior Holders pursuant to the terms and conditions of the Security Documents and the Intercreditor Agreements, as applicable, and such other security documents as the Administrative Agent or the Senior Collateral Agent shall reasonably request. (d) Subject to Section 5.15, the Loan Parties will (i) cause each loan or advance that is outstanding on or after the Closing Date to a Loan Party by a Restricted Subsidiary to be evidenced by an Intercompany Note duly executed and delivered, (ii) deliver such Intercompany Note to the Senior Collateral Agent, together with an appropriate allonges or other endorsement reasonably satisfactory to the Senior Collateral Agent, and (iii) execute such Security Documents in connection with the pledge of such Intercompany Note as the Senior Collateral Agent may reasonably request. (e) The Borrower and the Parent Guarantors will, and will cause each of the ~~Subsidiary~~ other Loan Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Senior Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates (including flood certificates and evidence of flood insurance if applicable), reports, control agreements (other than with respect to Excluded Assets) and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Senior Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Loan Parties to, deliver to the Senior Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Senior Collateral Agent to assure itself that this Section 5.13 has been complied with. (f) Within one-hundred twenty (120) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the date of acquisition by a domestic Loan Party of any Material Real Property (other than with respect to Excluded Assets) or such longer period as the Administrative Agent may agree in its reasonable discretion): (i) The Borrower and the Parent Guarantors will, and will cause each other domestic Loan Party to, grant to the Senior Collateral Agent for the ratable benefit of the ~~Secured Creditors security interests and~~ Senior Holders, Mortgages ~~in such assets and properties~~ (~~in the case of Real Property~~and, ~~limited to~~ if required by local law, related UCC fixture filings) over any Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such ~~security interests and~~ Mortgages ~~shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request~~(and, ~~including~~if applicable, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral AgentUCC fixture filings) shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens ~~with priority by virtue of applicable law and~~ subject to no other Liens except for Permitted ~~Liens~~Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement. The ~~Additional Security Documents~~ Mortgages (and related UCC filings) or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Senior Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsMortgages. (bii) ~~Subject~~ In connection with each Mortgage delivered pursuant to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, clause (i) ~~deliver~~ above, the Senior Collateral Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Senior Collateral Agent, ~~promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents~~ in an insured amount reasonably satisfactory to the ~~extent deemed by the Administrative Agent or the~~ Senior Collateral Agent ~~reasonably necessary for~~ insuring the ~~continued validity~~Senior Collateral Agent that the Mortgage on such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, ~~perfection~~ free and ~~priority (~~clear of all defects and encumbrances except Permitted Liens and, subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ ABL/Term Loan/Notes Intercreditor Agreement and ~~any Additional Pari Passu~~ the Intercreditor and Collateral Agency Agreement, with each such Mortgage Policy (1) of to be in form and substance reasonably satisfactory to the ~~Liens on~~ Senior Collateral Agent, and (2) to include, to the ~~Collateral covered thereby subject to no other Liens except for Permitted Liens or~~ extent applicable and available in the applicable jurisdiction at commercially reasonable rates, supplemental endorsements as ~~otherwise permitted~~ reasonably requested by the ~~applicable Security Document~~Senior Collateral Agent; provided however, in lieu of a zoning endorsement the Senior Collateral Agent shall accept a zoning report. (diii) If In connection with each Mortgage delivered pursuant to clause (i) above, to induce the ~~Administrative Agent or~~ title company to issue the ~~Collateral Agent reasonably determines that it or~~ Mortgage Policies referred to in clause (ii) above, the ~~Lenders are~~ title company shall have received such affidavits, certificates, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by ~~law or regulation to have appraisals prepared in respect~~ the title company, together with payment by the Borrower of ~~any Mortgaged Property~~all Mortgage Policy premiums, ~~Borrower will~~search and examination charges, ~~at its own expense~~mortgage recording taxes, ~~provide to~~ costs and expenses required for the ~~Administrative Agent appraisals which satisfy the applicable requirements~~ recording of ~~the Real Estate Appraisal Reform Amendments~~ such Mortgages and issuance of ~~the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended~~such Mortgage Policies. (eiv) ~~Borrower agrees that~~ In connection with each ~~action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken~~ Mortgage delivered pursuant to ~~such clauses or requested to be taken by the Administrative Agent~~clause (i) above, the ~~Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or~~ Senior Collateral Agent shall ~~otherwise agree, including~~ have received either an existing survey together with ~~respect~~ a no change affidavit sufficient for the title company to ~~any Real~~ remove the standard survey exception and issue the customary survey related endorsements or a new ALTA/ACSM Land Title survey of the relevant Mortgaged Property ~~acquired after~~ (and all improvements thereon) in form and substance reasonably acceptable to the ~~Closing Date that Borrower has notified the~~ Senior Collateral ~~Agent that it intends to dispose of~~ Agent. (v) In connection with each Mortgage delivered pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until clause (i) above, the Senior Collateral Agent ~~has provided written notice to Borrower~~ shall have received a “life of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency ~~standard flood hazard determinations~~ Standard Flood Hazard Determination with respect to each Mortgaged ~~Property and~~Property, in form and substance acceptable to the ~~extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the~~ Senior Collateral Agent ~~to Borrower of a~~ (together with notice of about special flood hazard area status and flood disaster ~~assistance and~~assistance, ~~if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a~~ duly executed ~~acknowledgment of receipt thereof~~ by the Borrower and ~~(ii)~~ applicable Subsidiary and evidence of flood ~~insurance as required by Section 9.03 hereof. Notwithstanding anything~~ insurance, in the event any ~~Credit Document~~ improvements are located in a special flood hazard area) in accordance with the Flood Laws. (vi) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received opinions of counsel for the Loan Parties in the jurisdiction where such Mortgaged Property is located, in form and substance reasonably satisfactory to the ~~contrary~~Senior Collateral Agent, if and such other documents as the Senior Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyreasonably requests.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Pyxus International, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Lead Borrower or a Domestic Subsidiary shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary, (ii) security interests and Mortgages shall not be required with respect to any Real Property that is not Material Real Property and (iii) security interests and Mortgages shall not be required with respect to any assets or properties to the extent that such security interests or Mortgages would result in a material adverse tax consequence to Holdings or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO or Foreign Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of the Lead Borrower under the Credit Documents. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Subsidiaries Guaranty ~~Agreement~~ and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and~~ The Lead Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Lead Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) the Lead Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Lead Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Bway Intermediate Company, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Subject to clause (e) of this Section 9.12, Parent and ~~Borrower~~ the Company will, and will cause each of the ~~Subsidiary Guarantors~~ Company’s Restricted Subsidiaries to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrowers, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in~~ Real Property of Parent, the ~~case of Real Property, limited to Material Real Property) of Holdings, Borrower~~ Company and ~~the~~ such other Restricted Subsidiary ~~Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Initial Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ i) First Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Initial Intercreditor Agreement) perfected security interests, hypothecations and Mortgages with respect to ABL Facility Priority Collateral and (ii) Second Priority (subject to the ~~Pari Passu~~ terms of the Initial Intercreditor Agreement) perfected security interests, ~~any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement, superior~~ Mortgages with respect to ~~and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens~~Term Loan Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrowers, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 9.12(a) shall not apply to (and Parent, the Company and its Restricted Subsidiaries shall not be required to grant a security interest or Mortgage in) (A) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of the Term Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 10.04(o) or (r), (B) any motor vehicles, (C) more than 65% of the voting Equity Interests of any CFC or Domestic Foreign Holding Company or (D) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to clause (e) of this Section 9.12, Parent and the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower Company will, and will cause each ~~applicable~~ of the Company’s Restricted ~~Subsidiary~~ Subsidiaries to, ~~(i)~~ at the expense of Parent and the Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such schedules, confirmatory assignments, financing statements (including, but not limited to, UCC fixture filings to be filed along with the applicable Mortgages), transfer endorsements, powers of attorney, certificates, ~~if any~~collateral access agreements, ~~representing all~~ control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require, subject to the terms of the Initial Intercreditor Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Parent, the Company and its Restricted Subsidiaries shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any local law pledge and/or security agreements or taking other actions with respect thereto be required. Furthermore, in the case of additional Real Property Collateral, Parent and the Company will, and will cause each of the Company’s Restricted Subsidiaries to, deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located, surveys or survey updates or ExpressMaps, as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Collateral Agent to assure itself that this Section 9.12 has been complied with. (c) If the Administrative Agent reasonably determines that the Lenders are required by law or regulation to have appraisals prepared in respect of any Real Property of Parent, the Company and its Restricted Subsidiaries constituting Collateral, subject to clause (e) of this Section 9.12, Parent, the Company and its Restricted Subsidiaries will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 9.12, the Credit Parties shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrowers or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Parent, the Company and its Restricted Subsidiaries agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 60 days (or 30 days in the case of clauses (f) and (g) of this Section 9.12) after such action is requested to be taken by the Administrative Agent (or such ~~lesser amount~~ longer period of time as ~~is required)~~ may be agreed to by the Administrative Agent in its discretion); provided, that in no event will Parent, the Company or any of ~~the Equity Interests of such~~ its Restricted ~~Subsidiary~~Subsidiaries be required to take any action, ~~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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each casethan using its commercially reasonable efforts, to obtain consents from, or actions by, third parties with respect to its compliance with this Section 9.12. (f) Parent and the ~~extent required pursuant to the Security Agreement), (ii)~~ Company will cause ~~such new Restricted~~ each Person that becomes a Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) of the Company and a Restricted Subsidiary of the Company after the Effective Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, and to the extent required by, the Security Agreement and deliver to the Collateral Agent (or to its agent, bailee or designee, including the Collateral Agent under the Term Loan Agreement in accordance with the terms of the Intercreditor Agreement) the certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, (ii) (A) execute a ~~joinder agreement~~ Joinder Agreement or such comparable documentation to ~~the Guaranty Agreement~~ become a Borrower or Guarantor hereunder and a joinder agreement to ~~each~~ the applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, ~~and~~ (B) take all actions reasonably necessary or advisable in the reasonable opinion of of, and requested by, the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (C) become a party to the Initial Intercreditor Agreement and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent ~~deemed~~ reasonably requested by the Administrative Agent or the ~~Collateral Agent reasonably necessary for the continued validity~~Required Lenders, ~~perfection~~ take all actions required pursuant to this Section 9.12 and ~~priority~~ (~~subject~~ iv) at least five days prior to the ~~terms~~ effective date of any new Wholly-Owned Domestic Subsidiary of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject Company becoming a Borrower or Guarantor hereunder pursuant to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document.~~ clause (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expenseii), provide to ~~the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery~~ all Lenders all documentation and ~~Enforcement Act of 1989, as amended. (e) Borrower agrees that each action~~ other information required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agentbank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (Patriot Act and the ~~date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing)~~information described in Section 13.18. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral ~~Agent~~ Agent, each new Wholly-Owned Domestic Subsidiary of the Company that is required to ~~Borrower~~ execute any Credit Document shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of ~~a notice~~ counsel) of ~~special flood hazard area status and flood disaster assistance and,~~ the type described in Section 6 as such new Wholly-Owned Domestic Subsidiary of the Company would have had to deliver if such ~~notice~~ new Subsidiary were a Credit Party on the Effective Date. (g) In addition, promptly after any applicable Wholly-Owned Domestic Subsidiary of Company that is ~~delivered~~ a Restricted Subsidiary ceases to ~~Borrower at least two (2) Business Days prior~~ constitute an “Excluded Subsidiary” in accordance with the respective definitions thereof, Company shall cause such Subsidiary to take all actions required by this Section 9.12 as if such ~~grant~~Subsidiary were then established, ~~increase, extension~~ created or ~~renewal, a duly executed acknowledgment of receipt thereof by~~ acquired. Each Borrower and each other Credit Party shall, within 90 days following the Effective Date (~~ii) evidence of flood insurance~~ as such date may be extended from time to time by the Administrative Agent in its sole discretion), enter into one or more Control Agreements as, and to the extent, required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.03(b).

Appears in 1 contract

Samples: Abl Credit Agreement (Jill Intermediate LLC)

Additional Security; Further Assurances; etc. (a) Subject to clause (e) of this Section 8.12, Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrower, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or Required Lenders (or otherwise required at such time pursuant to the Security Documents, subject to the terms of the Initial Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent)~~ Required Lenders and shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ x) First Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Initial Intercreditor Agreement) perfected security interests, hypothecations and Mortgages with respect to Term Loan Priority Collateral and (y) Second Priority (subject to the ~~Pari Passu~~ terms of the Initial Intercreditor Agreement) perfected security interests, ~~any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement, superior~~ Mortgages with respect to ~~and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens~~ABL Facility Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrower, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 8.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to grant a security interest or Mortgage in) (i) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of either the ABL Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 9.04(o) or (r), (ii) any motor vehicles, (iii) more than 65% of the voting Equity Interests of any first-tier CFC or Domestic Foreign Holding Company that is directly owned by any Credit Party, (iv) any Equity Interests of any CFC or Domestic Foreign Holding Company that is not directly owned by any Credit Party, and any Subsidiary of such CFC and Domestic Foreign Holding Company or (v) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to ~~the terms~~ clause (e) of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Datethis Section 8.12, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon~~ financing statements (including, but not limited to, UCC fixture filings to be filed along with the ~~reasonable request~~ applicable Mortgages), transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent or Required Lenders may reasonably ~~necessary for the continued validity~~require, ~~perfection and priority (~~subject to the terms of the ~~ABL~~ Initial Intercreditor Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Holdings and the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any local law pledge and/or security agreements or taking other actions with respect thereto, be required. Furthermore, in the case of additional Real Property Collateral, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located, surveys or survey updates or ExpressMaps, as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without a standard survey exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ Collateral Agent and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject~~ Required Lenders to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or ~~the Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or~~ the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, subject to clause (e) of this Section 8.12, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent and Required Lenders appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 8.12, the Borrower ~~agrees~~ shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Holdings and the Borrower agree that each action required by clauses (a) through (d), or by clauses (f) and (h) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (or 30 days in the case of clauses (f) and (h) of this Section 8.12) after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or ~~the~~ Required Lenders (or such longer period of time as may be agreed to by the Administrative ~~Agent or Collateral Agent shall otherwise agree~~Agent, ~~including with respect to any Real Property acquired after~~ at the ~~Closing Date that Borrower has notified the Collateral Agent that it intends to dispose~~ direction of ~~pursuant to a disposition permitted by Section 10.04~~Required Lenders); provided, ~~as the case may be; provided~~ that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents ~~from~~ from, or actions by, third parties with respect to its compliance with this Section ~~9.12; provided~~8.12. (f) Holdings will cause each Person that becomes a Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) after the Closing Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, ~~further~~and to the extent required by, ~~that, Borrower shall give~~ the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Security Agreement and deliver to the Collateral Agent ~~for~~ the ~~benefit of the Secured Creditors as required herein and shall not grant~~ certificates, if any, representing such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied stock or other Equity Interests, together with ~~the results thereof and~~ stock or other appropriate powers duly executed in blank, (ii) become a party to each of the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with Guaranty, the ~~results of any such due diligence or compliance~~ Security Agreement, the Intercreditor Agreements (if required thereby) and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and ~~the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended~~ a Copyright Security Agreement, and (iii) to the extent ~~necessary~~ requested by the Administrative Agent or the Required Lenders, take all actions required pursuant to ~~comply with the foregoing)~~this Section 8.12. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral Agent or Required Lenders, each new Wholly-Owned Domestic Subsidiary that is required to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in execute any Credit Document shall execute and deliver, or cause to ~~the contrary~~be executed and delivered, ~~if the Collateral Agent or any Lender is not satisfied with the results~~ all other relevant documentation (including opinions of ~~any flood insurance due diligence or flood insurance compliance or any~~ counsel) of the ~~deliveries referred~~ type described in Section 5 as such new Wholly-Owned Domestic Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Closing Date. Notwithstanding the foregoing in ~~the immediately preceding sentence~~this clause (f), ~~and determines it is in its best interest not to require a Mortgage on~~ no Credit Party that owns capital stock any ~~Material Real Property, the Credit Parties~~ Foreign Subsidiary shall ~~not~~ be required to ~~grant a Mortgage on such Material Real Property in favor~~ pledge the capital stock of such ~~Person or otherwise comply with~~ Foreign Subsidiary pursuant to security documentation governed by the ~~provisions~~ laws of the ~~Credit Documents relating~~ local jurisdiction of organization of such Foreign Subsidiary. (g) In addition, promptly after any applicable Wholly-Owned Domestic Subsidiary of the Borrower that is an Excluded Subsidiary ceases to ~~Mortgages with respect~~ constitute an “Excluded Subsidiary”, the Borrower shall cause such Subsidiary to take all actions required by this Section 8.12 as if such ~~Material Real Property~~Subsidiary were then established, created or acquired.

Appears in 1 contract

Samples: Term Loan Credit Agreement (J.Jill, Inc.)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Endeavour Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets of Holdings and such other Endeavour Party (including, without limitation properties ~~(in~~ of Holdings and such other Endeavour Party acquired subsequent to the ~~case of Real Property, limited to Material Real Property~~Effective Date) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (~~other than assets constituting Excluded Collateral~~including, without limitation, with respect to any such property, pursuant to grants pursuant to the laws of Scotland) and as may be reasonably requested from time to time by the Payee or the Collateral Agent (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”); provided that no Endeavour Party shall be required to take any action to grant or perfect a security interest on any Excluded Asset. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and ~~Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws~~ hypothecations and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other ~~Credit~~ Endeavour Parties to, at the expense of ~~Borrower~~Holdings and Payer, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord lien waivers, collateral access agreements, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral covered by any of the ~~Administrative~~ Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Endeavour Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 7.11 has been complied with. (c) Holdings will cause (i) each Subsidiary (other than any Immaterial Subsidiary or Unrestricted Subsidiary) that is established, created or acquired after the Effective Date and (ii) each Non-Guarantor Subsidiary (other than an Unrestricted Subsidiary) that ceases to be an Immaterial Subsidiary, in each case, to become a Guarantor and a party (in such capacity, a “Grantor”) to the U.S. Security Agreement, the English Security Documents and/or such other Security Documents as may be required by the Collateral Agent such that the Collateral Agent, ~~at Borrower’s expense~~for the benefit of the Secured Creditors, has a first priority security interest in all assets (other than Excluded Assets) of such Subsidiary or Non-Guarantor Subsidiary (as applicable). In addition, if, after the date hereof, any ~~document~~ Restricted Subsidiary of Holdings that is not already a Guarantor and a Grantor guarantees any other Indebtedness of Holdings or ~~instrument supplemental~~ any Guarantor in excess of the De Minimus Guaranteed Amount, then that Subsidiary shall become a Guarantor and a Grantor. Any such Subsidiary shall become a Guarantor and a Grantor pursuant to this clause (c) by executing joinders to the Subsidiaries Guaranty and the applicable Security Documents in form and substance satisfactory to the Collateral Agent whereby such Subsidiary shall guaranty the Obligations and grant a security interest to the Collateral Agent, for the benefit of the Secured Creditors, in the assets (other than Excluded Assets) of such Subsidiary and, in each case, delivering such documents to the Collateral Agent within 60 days of the date on which it was established, created or ~~confirmatory~~ acquired or ceased to be an Immaterial Subsidiary, as applicable (or such later date as may be agreed by the Collateral Agent in its sole discretion), or within 15 days of the date on which it guaranteed such other Indebtedness (or such later date as may be agreed by the Payee in its sole discretion), as the case may be, together with any Officer’s Certificate and opinion which may be reasonably requested by the Payee. In connection with the execution of such Security Documents, such Subsidiary shall take or cause to be taken such other actions (including delivering properly completed Uniform Commercial Code financing statements) as may be necessary or advisable in the opinion of the Collateral Agent to vest in the Collateral Agent, for the benefit of the Secured Creditors, a first-priority perfected security interest in such assets and to have such assets added to the Collateral and thereupon all provisions of this Agreement and the Security Documents relating to the ~~extent~~ Collateral shall be deemed ~~by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to relate to such assets to the ~~terms of~~ same extent and with the ~~ABL Intercreditor Agreement,~~ same force and effect. The requirements set forth above in this clause (c) are collectively referred to herein as the ~~Pari Passu Intercreditor Agreement, any~~ “Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security DocumentGuarantor Requirement”. (d) ~~If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect~~ Each of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery Holdings and ~~Enforcement Act of 1989, as amended. (e) Borrower agrees~~ Payer agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 7.11 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the ~~Administrative Agent, the~~ Payee or Collateral Agent or ~~the Required Lenders (or~~ such ~~longer period~~ later date as ~~the Administrative Agent or Collateral Agent shall~~ may be otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beprovided in such clauses; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property7.11.

Appears in 1 contract

Samples: Reimbursement Agreement (Endeavour International Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of ~~the other Credit Parties~~ its Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent or to assure itself that the ~~Collateral Agent reasonably necessary for the continued validity, perfection~~ Borrower and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentits Subsidiaries have complied with this Section 8.12. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of ~~any Mortgaged Property~~the Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which appraisals shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (d) Notwithstanding anything to the contrary contained above in this Section 8.12, the Receivables Subsidiary shall not be required to execute or deliver any Credit Documents, although all equity interests in the Receivables Subsidiary owned by any Credit Party shall be required to be pledged pursuant to the Pledge Agreement. (e) Each of the Borrower, each Agent and each Lender acknowledge and agree that on the Initial Borrowing Date no action has been taken to perfect the security interests created pursuant to the Security Agreement in the Borrower's and its Subsidiaries' motor vehicles, tractors or trailers (except to the extent that such perfection would occur under relevant State law as a result of the filing of forms UCC-1 (or the appropriate equivalent) under relevant State law), provided that upon the written request of the Administrative Agent or the Required Lenders at any time thereafter, the Borrower will, and will cause each of the other Credit Parties to, take, at their expense, all action (including, without limitation, notations on certificates of title under applicable State law) as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect such security interests in such motor vehicles, tractors and/or trailers such that all such security interests are perfected within 60 days (or such later date as may be agreed to by the Administrative Agent or the Required Lenders, as the case may be, in its or their sole discretion) following the date of such written request. (f) Notwithstanding anything to the contrary contained above in Section 8.12, no Foreign Subsidiary of the Borrower shall be required to enter into any pledge agreement, security agreement or guaranty described in this Section 8.12 except as required by such Section 8.13. (g) Within 60 days following the acquisition of a fee interest in Real Property by, or the opening of a new retail store located on any Real Property (other than any Real Property located in the State of Kentucky) owned by, the Borrower or any Subsidiary Guarantor, in either case having a fair market value equal to or greater than $500,000, the Borrower will, or cause the respective Subsidiary Guarantor to, grant to the Collateral Agent for the benefit of the Secured Creditors, a Mortgage on any such Real Property. All such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute a valid and enforceable perfected mortgage Lien on the respective Real Property superior to and prior to the rights of all third Persons and subject to no other Liens except for Permitted Liens. Such Mortgages and all instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to such Mortgages and all taxes, fees and other charges payable in connection therewith shall have been paid in full. (h) Within 60 days following the repayment of the respective Indebtedness secured by the relevant Real Property designated on Schedule IV Part C as a "Real Property Subject to an Existing Third-Party Mortgage Lien" and the release of such mortgage Lien, the Borrower will, or cause the respective Subsidiary Guarantor to, grant to the Collateral Agent for the benefit of the Secured Creditors, a Mortgage on any such Real Property. All such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute a valid and enforceable perfected mortgage Lien on the respective Real Property superior to and prior to the rights of all third Persons and subject to no other Liens except for Permitted Liens. Such Mortgages and all instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to such Mortgages and all taxes, fees and other charges payable in connection therewith shall have been paid in full. (i) The Borrower shall use reasonable commercial efforts to obtain consents, from the respective mortgagee of each Real Property designated on Schedule IV Part C as a "Real Property Subject to an Existing Third-Party Mortgage" where the underlying fair market value of such Real Property (calculated based on the tax assessed value thereof) is in excess of the Indebtedness (in each case as of the Initial Borrowing Date) secured thereby, to place a second mortgage Lien on such Real Property, and, within 60 days following the date any such consent is obtained, the Borrower will, or cause the respective Subsidiary Guarantor to, grant to the Collateral Agent for the benefit of the Secured Creditors, a Mortgage on any such Real Property providing for second Lien on such Real Property. All such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute a valid and enforceable perfected second mortgage Lien on the respective Real Property. Such Mortgages and all instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to such Mortgages and all taxes, fees and other charges payable in connection therewith shall have been paid in full. (j) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; ~~provided~~ PROVIDED that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using commercially reasonable efforts, to obtain consents or waivers from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property8.12.

Appears in 1 contract

Samples: Credit Agreement (Nash Finch Co)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets ~~and properties (in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with ~~any~~ the Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and or otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any Additional ~~Pari Passu~~ Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly intimated and recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any Additional ~~Pari Passu~~ Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i)~~ deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Documents). Subject to the terms of the Intercreditor Agreement and any Additional Intercreditor Agreement), if any additional direct or indirect U.S. Subsidiary of the Borrower (iii) is formed, acquired or ceases to constitute an Excluded Subsidiary following the Closing Date and such U.S. Subsidiary is (1) a Wholly-Owned Domestic Subsidiary that is not an Excluded Subsidiary or (2) any other U.S. Subsidiary that may be designated by a Parent Company in its sole discretion, the Borrower shall cause such ~~new Restricted~~ U.S. Subsidiary ~~(other than an Excluded Subsidiary)~~ to become a “Subsidiary Borrower” or “Subsidiary Guarantor” hereunder by causing such Subsidiary (A) to execute a joinder agreement to this Agreement in form and substance reasonably satisfactory to the ~~Guaranty Agreement~~ Administrative Agent and ~~a joinder agreement to each applicable~~ such Security ~~Document,~~ Documents creating such Lien over its assets in favor of the Collateral Agent for the benefit of the Secured Creditors on such terms and of such scope substantially in consistent with the ~~form annexed thereto, and~~ Security Documents; (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the ~~applicable~~ U.S. Security ~~Document~~ Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral ~~Agent~~ Agent; and (~~iii~~C) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) and customarily opined upon by counsel to the Credit Parties as the Administrative Agent may reasonably request. At the option of the Borrower, it may cause a Restricted Subsidiary that is a U.S. Subsidiary and a Subsidiary Guarantor to become a “Subsidiary Borrower” hereunder by causing such U.S. Subsidiary (A) to execute a joinder agreement to this Agreement and/or the Guaranty Agreement, as applicable, in form and substance satisfactory to the Administrative Agent, and such Security Documents creating such Lien over its assets in favor of the Collateral Agent for the benefit of the Secured Creditors on such terms and of such scope substantially consistent with U.S. Security Agreement or in any event, in form and substance reasonably satisfactory to the Collateral Agent; (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by U.S. Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; (C) at the request of the Administrative Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) and customarily opined upon by counsel to the Credit Parties as the Administrative Agent may reasonably request; and (D) to furnish to the Administrative Agent and the Lenders all documentation and other information that they reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. At the option of the Borrower, it may cause a Restricted Subsidiary that is a Canadian Subsidiary to become a “Subsidiary Guarantor” hereunder by causing such Subsidiary to (x) execute a joinder agreement to the Guaranty Agreement and such Security Documents creating such Lien over its assets in favor of the Collateral Agent for the benefit of the Secured Creditors on such terms and of such scope substantially consistent with the Security Agreement or in any event, in form and substance reasonably satisfactory to the Collateral Agent and (y) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the Canadian Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. (c) ~~Holdings and~~ The Borrower will, and will cause each of the ~~other Credit Parties~~ Subsidiary Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at the Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by U.S. Security Agreement or the ~~applicable~~ Canadian Security ~~Document~~Agreement, as applicable. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[Reserved]. (e) The Borrower agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or in each case, such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Revolving Credit Agreement (Custom Truck One Source, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Subsidiaries of the Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and such other Credit Parties that are Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the ~~“Additional Security Documents”~~"ADDITIONAL SECURITY DOCUMENTS"). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties that are Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries of the Borrower to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or ~~the Collateral Agent~~ any Lender reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the ~~Collateral Agent~~ Required Lender or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a ~~disposition permitted by Section 10.04)~~given Lender, as the case may be; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its best efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property8.12.

Appears in 1 contract

Samples: Credit Agreement (Nuco2 Inc /Fl)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, ~~and~~ a Canadian Subsidiary or a Dutch Subsidiary, but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests in such Collateral of such Borrower and ~~Mortgages (except to the extent that the enforceability thereof may be limited~~ such Restricted Subsidiaries as are not covered by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Restatement Effective Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary, a Canadian Subsidiary, or a Dutch Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agents, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Closing Date with respect to the Security Documents delivered on the Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitation set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of ~~Borrower~~the Company, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at ~~Borrower’s~~ Company's expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada and with respect to the Dutch Credit Parties, under applicable law in the Netherlands or England) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term "Eligible Accounts" solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, Canada or the Netherlands) for inclusion in the applicable Borrowing Base or (y) any requirement to take any Additional Inventory Security Action set forth in the definition of the term "Eligible Inventory" solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Borrower and located in the United Kingdom, France or Germany for inclusion in the Dutch Borrowing Base, in no event will ~~Borrower or any of its Restricted Subsidiaries~~ the Credit Parties be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.10. (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, ~~further~~to request Account Debtor notifications in the relevant Account Debtor Approved Countries, ~~that, Borrower~~ the Relevant Borrowers shall ~~give~~ provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent's security interest in the Accounts owing by such Account Debtors. (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Restatement Effective Date (or, in each such case, with respect to any Person that is or becomes after the Restatement Effective Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Restatement Effective Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an "Additional Mortgage"), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 1 contract

Samples: Restatement Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Subsidiaries of the Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors ~~security interests~~ Security Interests and Mortgages in such ~~assets~~ assets, properties and owned real properties (having a fair market value, as reasonably estimated by the Borrower, in ~~the case~~ excess of ~~Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date~~ $1,000,000 (other than ~~assets constituting Excluded Collateral~~the New Jersey Property except as set forth below) of the Borrower and such other Credit Parties that are Subsidiaries of the Borrower as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"); provided that the Credit Parties shall not be required to grant Liens on assets that are subject to express exclusions in the Security Documents until (and then to the extent) such exclusions are no longer applicable; provided, further that RCN Telecom Services, Inc. shall be required pursuant to the provisions of this Section 8.12 to grant to the Collateral Agent for the benefit of the Secured Creditors a Mortgage in the New Jersey Property on or prior to June 30, 2005 unless the New Jersey Property has otherwise been sold in accordance with Section 9.02(xvix) on or prior to June 30, 2005. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. ~~Notwithstanding any other provision in~~ The Borrower shall make arrangements to ensure that all such recordations and filings made pursuant to this ~~Agreement~~ Section 8.12 or any ~~other Credit Document, no Excluded Subsidiary shall be required to pledge any~~ of ~~its assets to secure any obligations of Borrower under~~ the ~~Credit~~ Security Documents or ~~guarantee~~ Additional Security Documents are made at least one Business Day before any equivalent recordations or filings are made pursuant to the ~~obligations of Borrower under~~ Second-Lien Note Documents or the Third-Lien Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties that are Subsidiaries of the Borrower to, at the expense of ~~Borrower~~the Borrower and the Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries of the Borrower to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower ~~agrees~~ and the Borrower agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property8.12.

Appears in 1 contract

Samples: First Lien Credit Agreement (RCN Corp /De/)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in all assets that constitute Collateral (including Mortgages and ~~Mortgages in~~ Real Property of Holdings and such ~~assets and properties (in the case of Real Property, limited to Material Real Property~~other Credit Party) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”), along with such opinions of counsel, title insurance and other related documents as may be requested by the Collateral Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 10.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any owned Real Property the Fair Market Value of ~~its assets to secure~~ which is less than $5,000,000 or any ~~obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Leasehold. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings, Parent and each Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent or the Collateral Agent ~~reasonably necessary for~~ to assure itself that this Section 10.12 has been complied with. (c) Holdings will, and will cause each of the ~~continued validity~~other Credit Parties to, ~~perfection and priority (subject~~ deliver to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ Administrative Agent and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ the Collateral ~~covered thereby subject~~ Agent Lien Waiver Agreements with respect to ~~no other Liens except for Permitted Liens~~ all locations or ~~as otherwise permitted by the applicable Security Document~~places at which Inventory and books and records are located. (d) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings, Parent and each Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) Holdings, Parent and each Borrower agrees that each action required by clauses (a) through (d) of this Section ~~9.12~~ 10.12 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such ~~longer period~~ later date as may be agreed by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its sole discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its best efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property10.12.

Appears in 1 contract

Samples: Credit Agreement (STG Group, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower --------------------------------------------- will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"); provided, -------- however, neither the Borrower nor any other Credit Party will be required to ------- grant a Mortgage on any Real Property pursuant to this Section 8.12(a) unless the fair market value (as determined in good faith by the Borrower) of such Real Property equals or exceeds $2,500,000. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of ~~the other Credit Parties~~ its Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require and as are generally consistent with the terms of this Agreement and such Security Documents. Furthermore, the Borrower will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of ~~any Mortgaged Property~~the Real Property of the Borrower and its Subsidiaries constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will -------- the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable best efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property8.12.

Appears in 1 contract

Samples: Credit Agreement (Manitowoc Co Inc)

Additional Security; Further Assurances; etc. (a) Subject to the last sentence of this Section 9.12(a), Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors as are acquired after the Closing Date~~ such other Credit Party (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets, as defined in the Security Agreement) as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (or otherwise required at such time pursuant to the Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except in each case for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Each Credit Party that owns or acquires fee owned Real Property with a Fair Market Value in excess of $7,500,000, such Credit Party will promptly deliver to the Collateral Agent the documents and other instruments set forth on Schedule 9.12(a). Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any~~ Section 9.12(a) shall not (i) apply to (and Holdings and its Subsidiaries, the Borrower and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall not be required to ~~pledge~~ grant a Mortgage in) any fee owned Real Property the Fair Market Value of ~~its assets~~ which is $7,500,000 or less or any Leasehold unless, in either case, a Mortgage is granted (or requested to ~~secure~~ be granted) in respect of such Real Property pursuant to the terms of the Senior Secured Notes Documents, any ~~obligations of Borrower under the Credit~~ Additional Obligations Documents or ~~guarantee~~ any Refinancing Senior Secured Notes Documents and (ii) require the ~~obligations of~~ Borrower ~~under~~ and the other Credit Parties to perfect any lien it is not required to otherwise perfect pursuant to the Credit Documents, including, without limitation, deliver any control agreement in respect of any Excluded Deposit Account. (b) Subject to the ~~terms~~ last sentence of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing DateSection 9.12(a), Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates (including flood certificates and evidence of flood insurance if applicable), real property surveys, reports, control agreements (other than with respect to Excluded Deposit Accounts) and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for~~ require. Furthermore, Holdings will, and will cause the ~~continued validity~~other Credit Parties to, ~~perfection and priority (subject~~ deliver to the ~~terms~~ Collateral Agent such opinions of ~~the ABL Intercreditor Agreement~~counsel, ~~the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ title insurance and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ other related documents as may be reasonably requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form reasonably satisfactory to the Administrative Agent. (ed) Holdings and the Borrower ~~agrees~~ agree that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or as such ~~longer period as~~ date may be extended by the Administrative ~~Agent or Collateral Agent shall otherwise agree~~Agent, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its sole discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ Holdings or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using commercially reasonable efforts, to obtain consents or other agreements from third parties with respect to its compliance with this Section 9.12~~; provided~~. (e) The Borrower and each other Credit Party shall, ~~further~~within 90 days following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion), ~~that~~enter into one or more Cash Management Control Agreements as, ~~Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ and to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseextent, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.03(b).

Appears in 1 contract

Samples: Abl Credit Agreement (Southeastern Grocers, LLC)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each of the Credit Parties will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties security interests ~~and Mortgages~~ in such assets of such Credit Party and ~~properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests ~~and Mortgages~~ subject to no Liens (except ~~to the extent~~ for Permitted Liens, it being understood that ~~the enforceability thereof may~~ Liens permitted by Section 10.01(d) shall be ~~limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any~~ Section 9.12(a) shall not apply to (and the Company and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall not be required to ~~pledge~~ grant a mortgage in) any ~~of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Real Property. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Parties will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~the Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for~~ require. Furthermore, each of the ~~continued validity~~Credit Parties will, ~~perfection~~ and ~~priority (subject~~ will cause the other Credit Parties to, deliver to the ~~terms~~ Collateral Agent such opinions of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ counsel and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ other related documents as may be reasonably requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower Each Credit Party agrees that each action required by clauses (a) ~~through~~ and (db) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or as such ~~longer period as~~ date may be extended by the Administrative Agent ~~or Collateral Agent shall otherwise agree~~in its sole discretion); provided, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ any Credit Party or any of ~~its Restricted~~ their respective Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided~~. (d) Each Borrower and each Guarantor shall, ~~further~~within 90 days following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion), ~~that~~enter into one or more Cash Management Control Agreements as, ~~Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ and to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseextent, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.03(b).

Appears in 1 contract

Samples: Abl Credit Agreement (CVR Refining, LP)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary or a Canadian Subsidiary, ~~and~~ but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests in such Collateral of such Borrower and ~~Mortgages (except to the extent that the enforceability thereof may be limited~~ such Restricted Subsidiaries as are not covered by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Second Restatement Effective Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary or a Canadian Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Second Restatement Effective Date with respect to the Security Documents delivered on the Original Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitation set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of ~~Borrower~~the Company, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at ~~Borrower’s~~ Company's expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, without limiting any requirement to take any Additional Account Security Action set forth in the definition of the term "Eligible Accounts" solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States or Canada) for inclusion in the Borrowing Base, it being understood that in no event will ~~Borrower or any of its Restricted Subsidiaries~~ the Credit Parties be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.10. (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, ~~further~~to request Account Debtor notifications in the relevant Account Debtor Approved Countries, ~~that, Borrower~~ the Relevant Borrowers shall ~~give~~ provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent's security interest in the Accounts owing by such Account Debtors. (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Second Restatement Effective Date (or, in each such case, with respect to any Person that is or becomes after the Second Restatement Effective Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Second Restatement Effective Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an "Additional Mortgage"), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 1 contract

Samples: Credit Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties security interests ~~and Mortgages~~ in such Oil and Gas Assets and other assets of Holdings and such other Credit Party (including, without limitation properties ~~(in~~ of Holdings and such other Credit Party acquired subsequent to the ~~case of Real Property, limited to Material Real Property~~Closing Date) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (~~other than assets constituting Excluded Collateral~~including, without limitation, with respect to any such property, pursuant to grants pursuant to the laws of Scotland) and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”); provided that no Credit Party shall be required to take any action to grant or perfect a security interest on any Excluded Asset for so long as, and to the extent that, such Oil and Gas Properties constitute Excluded Assets; provided, further, that within 60 days following the date of the first Reserve Report reflecting that any Credit Party owns Oil and Gas Properties in North America that are not Excluded Assets, the applicable Credit Party shall cause such Oil and Gas Properties to become Collateral subject to the Liens of the Security Documents. In addition, at such time as any deposit account of Holdings or any Credit Party ceases to be an Excluded Account, Holdings or the applicable Credit Party, shall, within 60 days thereafter, cause such deposit account to become Collateral subject to the Liens of the Security Documents. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full.” (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~Holdings and the Borrowers, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord lien waivers, collateral access agreements, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral covered by any of the ~~Administrative~~ Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 5.12 has been complied with. (c) Holdings will cause (i) each Subsidiary (other than any Immaterial Subsidiary or Unrestricted Subsidiary) that is established, created or acquired after the Closing Date and (ii) each Non-Guarantor Subsidiary (other than an Unrestricted Subsidiary) that ceases to be an Immaterial Subsidiary, in each case, to become a Guarantor and a party (in such capacity, a “Grantor”) to the U.S. Security Agreement, the English Security Documents and/or such other Security Documents as may be required by the Collateral Agent such that the Collateral Agent, ~~at Borrower’s expense~~for the benefit of the Secured Parties, has a first priority security interest in all assets (other than Excluded Assets) of such Subsidiary or Non-Guarantor Subsidiary (as applicable). In addition, if, after the date hereof, any ~~document~~ Restricted Subsidiary of Holdings that is not already a Guarantor and a Grantor (including any Immaterial Subsidiary) guarantees any other Indebtedness of Holdings or ~~instrument supplemental to or confirmatory~~ any Guarantor in excess of the De Minimis Guaranteed Amount, then that Subsidiary shall become a Guarantor and a Grantor. Any such Subsidiary shall become a Guarantor and a Grantor pursuant to this clause (c) by executing joinders to the Credit Party Guaranty and the applicable Security Documents in form and substance satisfactory to the ~~extent deemed~~ Administrative Agent whereby such Subsidiary shall guarantee the Obligations and grant a security interest to the Collateral Agent, for the benefit of the Secured Parties, in the assets (other than Excluded Assets) of such Subsidiary and, in each case, delivering such documents to the Administrative Agent within 60 days after the date on which it was established, created or acquired or ceased to be an Immaterial Subsidiary, as applicable (or such later date as may be agreed by the Administrative Agent in its sole discretion), or within 15 days of the date on which it guaranteed such other Indebtedness (or such later date as may be agreed by the Administrative Agent in its sole discretion), as the case may be, together with any officer’s certificate and opinion which may be reasonably requested by the Administrative Agent. In connection with the execution of such Security Documents, such Subsidiary shall take or cause to be taken such other actions (including delivering properly completed UCC financing statements) as may be necessary or advisable in the opinion of the Collateral Agent ~~reasonably necessary~~ to vest in the Collateral Agent, for the ~~continued validity~~benefit of the Secured Parties, ~~perfection~~ a first-priority perfected security interest in such assets and ~~priority (subject~~ to have such assets added to the ~~terms~~ Collateral and thereupon all provisions of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ this Agreement and ~~any Additional Pari Passu Intercreditor Agreement) of~~ the ~~Liens on~~ Security Documents relating to the Collateral ~~covered thereby subject~~ shall be deemed to ~~no other Liens except for Permitted Liens or~~ relate to such assets to the same extent and with the same force and effect. The requirements set forth above in this clause (c) are collectively referred to herein as ~~otherwise permitted by~~ the ~~applicable Security Document~~“Additional Guarantor Requirement”. (d) If Each of Holdings and the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower Borrowers agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 5.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such ~~longer period~~ later date as ~~the Administrative Agent or Collateral Agent shall~~ may be otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided ~~that,~~ in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyclauses.

Appears in 1 contract

Samples: Credit Agreement (Endeavour International Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of ~~the Subsidiary Guarantors~~ its Wholly-Owned Domestic Subsidiaries to, grant to the Collateral ~~Agent~~ Agent, for the benefit of the Secured ~~Creditors~~ Creditors, security interests and ~~Mortgages~~ mortgages in such assets and properties ~~(in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower ~~and the~~ or such Wholly-Owned Domestic Subsidiary ~~Guarantors as are acquired after the Closing Date~~ (other than ~~assets constituting~~ Excluded Collateral) as are not covered by the Security Documents, and as may be ~~reasonably~~ requested from time to time by the ~~Collateral~~ Agent or the Required Banks (collectively, ~~as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"). All such security interests and ~~Mortgages~~ mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted ~~Liens~~Liens or Permitted Encumbrances. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, this Section 8.11(a) shall not apply to (I) any Leasehold (other ~~provision~~ than any MK Leasehold) from any lessor if (i) the fair market value of such Leasehold (as determined in ~~this Agreement~~ good faith by senior management of the Borrower) is less than $5,000,000 or ~~any other Credit Document~~(ii) the Borrower or such Wholly-Owned Subsidiary, ~~no Excluded Subsidiary~~ as the case may be, shall be required to ~~pledge~~ pay any consideration or expenses (other than de minimis amounts) or incur any material obligation or suffer any undue burden in connection with the grant of a security interest in such Leasehold and (II) any MK Leasehold which by its ~~assets~~ terms prevents the respective lessee from granting a security interest therein, provided that each of Xxxxxx and BCM Holdings shall use its reasonable efforts to ~~secure~~ obtain memoranda of lease (in recordable form) and consents to leasehold mortgages in respect of the MK Leaseholds and, in the event Xxxxxx or BCM Holdings is successful in its effort to obtain any ~~obligations~~ such memorandum or consent, Xxxxxx or BCM Holdings, as the case may be, shall deliver to the Collateral Agent (i) a fully executed counterpart of ~~Borrower~~ Mortgage in form and substance satisfactory to the Collateral Agent, together with evidence that a counterpart of such Mortgage has been delivered to the title insurance company insuring the lien on such Mortgage for recording in all places to the extent necessary or, in the opinion of the Collateral Agent, desirable to effectively create a valid and enforceable first priority mortgage lien on such MK Leasehold in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the ~~Credit Documents~~ benefit of the Secured Creditors and (ii) a Mortgage Policy on such MK Leasehold issued by such title insurer satisfactory to the Collateral Agent in amounts satisfactory to the Collateral Agent, assuring the Collateral Agent that the Mortgage on such MK Leasehold is a valid and enforceable first priority mortgage lien on such MK Leasehold, free and clear of all defects and encumbrances except Permitted Encumbrances and such Mortgage Policy (w) shall otherwise be in form and substance satisfactory to the Collateral Agent, (x) shall include (as appropriate) an endorsement for future advances under this Agreement and the Notes and for any other matter that the Collateral Agent may request, (y) shall not include an exception for mechanics' liens or ~~guarantee~~ creditors' rights and (z) shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the ~~obligations~~ Collateral Agent may request. The parties hereto agree and understand that if a security interest is not required to be granted in the respective Leasehold by reason of ~~Borrower~~ the provisions of the preceding sentence, no Default or Event of Default shall arise under ~~the Credit Documents~~this Agreement as a result of any failure to grant said security interest. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of ~~the other Credit Parties~~ its Subsidiaries to, at the expense of the Borrower, make, execute, endorse, acknowledge, file ~~and/or~~ and/ or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for the continued validity, perfection and priority (subject~~ require pursuant to ~~the terms of the ABL Intercreditor Agreement~~this Section 8.11. Furthermore, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall ~~be completed in no event later than 90 days after such action is required~~ cause to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage delivered to the Collateral Agent ~~for~~ such opinions of counsel, Required Appraisals satisfying the ~~benefit~~ requirements of ~~the Secured Creditors~~ applicable law, mortgage policies, title insurance and other related documents as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically may be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery reasonably requested by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.assure itself that this Section

Appears in 1 contract

Samples: Credit Agreement (Jordan Industries Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Subject to the terms and conditions of the Credit Documents, the Administrative Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such ~~assets and properties (in~~ Collateral of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Administrative Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets) ~~and~~ as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as ~~may be~~ amended, restated, amended and restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ (i) shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and the Administrative Borrower, and (ii) subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) , shall ~~constitute~~constitute valid, ~~upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and~~ enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), ) and perfected security interests (if and to the extent the assets subject to the ~~terms of~~ applicable Additional Security Document can be perfected by the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any~~ actions required by such Additional ~~Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement,~~ Security Document) superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent such security interests can be perfected by the filings or other actions required under the Additional Security Documents), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all Taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~paid in full. (b) Subject to the terms and conditions of the ~~ABL Intercreditor Agreement~~Credit Documents, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the reasonable expense of ~~Borrower~~the Borrowers, make, execute, endorse, acknowledge, ~~file~~ authorize and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~conveyances, ~~upon~~ financing statements, transfer endorsements, powers of attorney, certificates, reports, control agreements on deposit accounts (other than Excluded Deposit Accounts (as defined in the ~~reasonable request~~ Security Agreement)) and other documents, assurances, opinions of counsel or instruments, in each case, solely to the ~~Administrative Agent or~~ extent required by the Security Documents, and take such further similar steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents to as the ~~extent deemed~~ Collateral Agent may reasonably require in accordance with the Security Documents. Each Credit Party acknowledges that certain transactions contemplated by this Agreement and the other Credit Documents, and certain actions which may be taken by the Administrative Agent, the Collateral Agent or the ~~Collateral Agent reasonably necessary for~~ Lenders in the ~~continued validity~~exercise of their rights and remedies under this Agreement or any other Credit Document, ~~perfection and priority (subject to~~ may require the ~~terms~~ consent of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement,~~ FCC or any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable ~~Security Document. (d)~~ Gaming Authority. If the Administrative Agent reasonably determines that the consent of the FCC or Gaming Authority is required in connection with the execution, delivery or performance of any of the aforesaid documents or any documents delivered to the Administrative Agent, the Collateral Agent ~~reasonably determines that it~~ or the Lenders ~~are required by law~~ in connection therewith or ~~regulation to have appraisals prepared in respect~~ as a result of any ~~Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals~~ action which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall may be ~~completed in no event later than 90 days after such action is required~~ taken or be proposed to be taken pursuant thereto, then each Credit Party, at its sole reasonable cost and expense, shall use its commercially reasonable efforts to secure such ~~clauses~~ prior consent and to cooperate with the Administrative Agent, the Collateral Agent and the Lenders in any such action taken or ~~requested~~ proposed to be taken by the Administrative Agent, the Collateral Agent or any Lender. (c) [Reserved]. (d) The Borrowers agree that each action required by clauses (a) through (c) of this Section 8.11 shall be completed within sixty (60) days after such action is requested to be taken by the Administrative Agent or the Required Lenders (or as such ~~longer period as~~ time may be extended by the Administrative Agent or ~~Collateral Agent shall otherwise agree~~the Required Lenders in its or their discretion); provided, ~~including with respect to any Real Property acquired after the Closing Date~~ that ~~Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that,~~ in no event ~~will~~ shall the Administrative Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.11. (e) Promptly after any Domestic Restricted Subsidiary of the Administrative Borrower ceases to constitute an Excluded Subsidiary in accordance with the applicable definitions thereof, ~~further, that,~~ the Administrative Borrower shall ~~give the Collateral Agent 45 days written notice prior~~ cause such Domestic Restricted Subsidiary to ~~granting any Mortgage~~ take all actions required as if such Domestic Restricted Subsidiary were then established, created or acquired, including to ~~the Collateral Agent for the benefit~~ execute and deliver, or cause to be executed and delivered, all other relevant documentation of the ~~Secured Creditors~~ type described in Sections 5.02, 5.03 (if reasonably requested by the Administrative Agent in writing), 5.04, 5.10, 5.11, 5.12 and 5.13 as ~~required herein and shall not grant~~ such ~~Mortgage until~~ new Restricted Subsidiary would have had to deliver if such new Restricted Subsidiary were a Credit Party on the Effective Date. (f) In the event (A) new Unrestricted Subsidiaries are established or created, or the Administrative Borrower or any of its Wholly-Owned Restricted Subsidiaries acquires Equity Interests in an Unrestricted Subsidiary (i) all Investments by the ~~Collateral Agent has provided written notice~~ Administrative Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary shall be permitted pursuant to ~~Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof~~ Section 9.05 and (ii) all requirements of the ~~expiration~~ definition of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance Unrestricted Subsidiary and Section 8.14 shall have been satisfied, and (~~and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended~~ B) subject to the ~~extent necessary to comply with the foregoing). Each~~ terms of the ~~parties hereto acknowledges~~ Revolver Intercreditor Agreement, the Administrative Borrower and ~~agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase~~its Wholly-Owned Restricted Subsidiaries establish, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property create and, to the extent permitted by this Agreement, acquire Wholly-Owned Restricted Subsidiaries (other than any ~~improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency~~Excluded Subsidiary) ~~to be a special flood hazard area,~~ (i) ~~delivery by~~ the Equity Interests (other than any Excluded Equity Interests) of such new Wholly-Owned Restricted Subsidiary shall be promptly pledged pursuant to, and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests (other than any Excluded Equity Interests), together with stock or other appropriate powers duly executed in blank, shall be delivered to the Collateral Agent (or its bailee) as, and to ~~Borrower of a notice of special flood hazard area status and flood disaster assistance and~~the extent required by, ~~if such notice is delivered to Borrower at least two (2) Business Days prior to such grant~~the Pledge Agreement, ~~increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and~~ (ii) ~~evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in~~ each such new Wholly-Owned Domestic Restricted Subsidiary (other than any ~~Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any~~ Excluded Subsidiary) shall execute a counterpart of the ~~deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property~~Guaranty, the ~~Credit Parties~~ Security Agreement and the Pledge Agreement and (iii) each such new Wholly-Owned Domestic Restricted Subsidiary (other than any Excluded Subsidiary) shall ~~not be~~ take all actions required pursuant to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertythis Section 8.11.

Appears in 1 contract

Samples: Credit Agreement (Urban One, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings, Borrower~~ the Borrowers and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Applicable Intercreditor Agreement, superior to and prior to the rights and Liens of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit ~~Document,~~ Document (x) no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents, (y) no action shall be required to be taken by a Credit Party, or shall be taken by any Agent or Lender, under foreign law, to perfect security interests in assets of the Credit Parties located outside of the United States or otherwise with respect to creation or perfection of Liens under foreign law, except to perfect security interests in assets or Equity Interests of a Foreign Subsidiary in such Foreign Subsidiary’s jurisdiction of organization in connection with the designation of such Foreign Subsidiary as a Credit Party and (z) notices shall not be required to be sent to Account Debtors or other contractual third parties (other than third parties party to any Credit Document or during the continuance of an Event of Default). (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Applicable Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing ~~Date, Holdings and~~ Date or that becomes a Borrower ~~will, and will cause each applicable Restricted Subsidiary to~~pursuant to Section 9.17, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to this Agreement or the Guaranty ~~Agreement~~ Agreement, as applicable, and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the ~~Lien~~ Liens created by ~~the~~ each applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the other Credit Parties to, at the expense of Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, ~~Borrower~~ the Borrowers will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) ~~Borrower agrees~~ The Borrowers agree that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days (or, with respect to the Mortgages, and the documentation supplemental thereto, 120 days) after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the ~~Administrative Agent or~~ Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Lead Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ the Borrowers or any of ~~its~~ their Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; ~~provided, further,~~ provided further that, ~~Borrower~~ the Borrowers shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to ~~Borrower~~ the Borrowers of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Lead Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Lead Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Lead Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Lead Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any ~~Material Real~~ Mortgaged Property, the Credit Parties shall not be required to grant a Mortgage on such ~~Material Real~~ Mortgaged Property in favor of such Person or otherwise comply with respect to such Person with the provisions of the Credit Documents relating to ~~Mortgages with respect to such Material Real Property~~Mortgages.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Interior Logic Group Holdings, LLC)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Except as otherwise provided in Section 9.14 and subject to (i) the exclusion of Billboard Real Estate as provided in Section 5.01(j)(ii), (ii) the exclusion of the Payroll Account and cash on deposit in the Payroll Account (as provided in the definition of Collateral), and (iii) the exclusion of Excluded Property (as defined in the Security Agreement), Borrower will, and will cause each of ~~the Subsidiary Guarantors~~ its Wholly-Owned Domestic Subsidiaries to, grant to the ~~Collateral Agent for the benefit of the Secured Creditors~~ Lender security interests and ~~Mortgages~~ mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such Wholly-Owned Domestic Subsidiaries as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents and execute and deliver to Lender such documents, agreements and instruments, and will take or cause to be taken such further actions (including, but not limited to, the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other ~~than assets constituting Excluded Collateral) and as~~ documents), all of which may be reasonably requested from time to time by ~~the Collateral Agent~~ Xxxxxx (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such ~~security interests and Mortgages~~ Additional Security Documents shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance satisfactory to ~~the Collateral Agent~~ Lender and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall constitute, ~~upon taking all necessary perfection action~~ after appropriate filings have been made (~~which~~ to the ~~Credit Parties agree~~ extent required to ~~take pursuant to clause (e) below)~~ be so made), valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of ~~the Collateral Agent~~ Lender required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~Xxxxxxxx, make, execute, endorse, acknowledge, file and/or deliver to Lender from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as Lender may reasonably require. Furthermore, Borrower will, and will cause the other Credit Parties to, deliver to ~~the extent deemed~~ Lender such title insurance and other related documents as may be reasonably requested by ~~the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ Xxxxxx to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If ~~the Administrative Agent or the Collateral Agent~~ Lender reasonably determines that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~interest in Real Property owned by Borrower and its Subsidiaries constituting Collateral, Borrower will, at its own expense, provide to ~~the Administrative Agent~~ Lender appraisals ~~which~~ which, if required by law or regulation, satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to Lender. (ed) ~~Borrower~~ Xxxxxxxx agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken ~~pursuant to such clauses~~ or is requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)taken, as the case may be~~; provided that~~, ~~in no event will Borrower or any~~ at the direction of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyXxxxxx.

Appears in 1 contract

Samples: Credit Agreement (BOSTON OMAHA Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets ~~and properties (in~~ of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Lead Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC, (ii) security interests and (iii) security interests shall not be required with respect to any assets or properties to the extent that such security interests would result in a material adverse tax consequence to the Lead Borrower or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any ~~Additional Pari Passu~~ First Lien/Second Lien Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Subsidiary of a CFC or FSHCO shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor ~~Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Agreement and any ~~Additional Pari Passu~~ First Lien/Second Lien Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the ~~Guaranty Agreement and~~ Subsidiaries Guaranty, a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and a certificate attested to by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit E with all appropriate insertions and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and~~ The Lead Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended[reserved]. (e) the Lead Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Lead Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until . (if) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property[reserved].

Appears in 1 contract

Samples: First Lien Term Loan Credit Agreement (PAE Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Issuer will, and will cause each of the ~~Subsidiary~~ Guarantors to, grant to the Collateral Agent for the benefit of the ~~Secured Creditors~~ Holders of the Notes valid, enforceable and perfected first priority security interests and Mortgages (subject to any Permitted Encumbrances) in ~~such~~ all assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings, Borrower~~ Issuer and ~~the Subsidiary~~ such other Guarantors ~~as are acquired after the Closing Date~~ (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets) ~~and as may be reasonably requested from time to time~~ that are not covered by the Notes Collateral ~~Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ Documents in effect on the ~~“Additional Security Documents”)~~Issue Date. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral ~~Agent and (subject to exceptions as are reasonably acceptable to the Collateral~~ Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower The Issuer will, and will cause each of the ~~other Credit Parties~~ Guarantors to, at the joint and several expense of ~~Borrower~~the Issuer and the Guarantors, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, Real Property surveys, Pari Passu Intercreditor Memos, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Notes Collateral Documents as the Collateral Agent may reasonably require. Furthermore, the Issuer will, and will cause the Guarantors to, deliver to the Collateral Agent such Officers’ Certificates, Opinions of Counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 4.20 has been complied with. (c) To the extent the Collateral Agent has not received any of the following on or prior to the Issue Date, then the Issuer shall cause the following actions to be taken as promptly as practicable after the Issue Date, provided that in any event such actions shall be required to be completed within 90 days after the Issue Date, as may be extended (with respect to a given action or actions) at the reasonable ~~request~~ discretion of the ~~Administrative~~ Collateral Agent: (1) delivery to the Collateral Agent or of fully executed counterparts of Mortgages and to the extent required by the Collateral Agent, ~~at Borrower’s expense~~corresponding UCC Fixture Filings and As-Extracted Collateral Filings (or, if UCC Fixture Filings and As-Extracted Collateral Filings are not available in the applicable jurisdiction, equivalent filings as available in such jurisdiction), and any similar filings as shall be required by local law, in form and substance reasonably satisfactory to the Collateral Agent, which Mortgages and UCC Fixture Filings (or, in the case of UCC Fixture Filings, any ~~document~~ other equivalent filings, as available in each applicable jurisdiction) shall cover each Real Property owned or ~~instrument supplemental~~ leased by the Issuer or any of its Subsidiaries and designated as Closing Date Mortgaged Property, together with evidence that counterparts of such Mortgages and UCC Fixture Filings (or, in the case of UCC Fixture Filings, any other equivalent filings, as available in each applicable jurisdiction) and, if applicable, As-Extracted Collateral Filings (or, in the case of UCC Fixture Filings and As-Extracted Collateral Filings, any other equivalent filings, as available in each applicable jurisdiction) have been delivered to ~~or confirmatory~~ the title insurance company insuring the Lien of such Mortgage for recording, together with fully executed counterparts of each Pari Passu Intercreditor Memo in respect thereto, in form and substance reasonably satisfactory to the Collateral Agent and with evidence that counterparts of such Pari Passu Intercreditor Memos have been delivered to the title insurance company for recording; (2) delivery to the Collateral Agent of a Mortgage Policy relating to each Mortgage of the ~~Security Documents~~ Mortgaged Property referred to in clause (1) above, issued by a title insurer reasonably satisfactory to the Collateral Agent, in an insured amount satisfactory to the Collateral Agent not to exceed 110% of the fair market value of the Mortgaged Property and insuring that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such Mortgage Policy (1) to be in form and substance reasonably satisfactory to the Collateral Agent and (2) to include, to the extent ~~deemed by~~ available and issued at ordinary rates, customary endorsements in the ~~Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority~~ applicable jurisdiction; and (~~subject~~ 3) if previously delivered to the ~~terms of~~ administrative agent under the ~~ABL Intercreditor~~ Credit Agreement, all Mortgaged Coal Property Support Documents as delivered to the ~~Pari Passu Intercreditor Agreement,~~ administrative agent under the Credit Agreement with respect to each lease or grant of mineral rights as to which the Issuer or any ~~Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement)~~ of ~~the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens~~ its Subsidiaries is a lessee or ~~as otherwise permitted by the applicable Security Document~~grantee. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower The Issuer agrees that each action required by clauses (a) ~~through~~ or (db) of this Section ~~9.12~~ 4.20 shall be completed as soon as possible, but in no event later than 90 the earlier of (i) the taking of any such action for the benefit of any Authorized Representative and (ii) 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the ~~Administrative Agent, the~~ Collateral Agent or the ~~Required Lenders~~ Holders of at least 25% in aggregate principal amount of the Notes then outstanding (or as such ~~longer period as~~ date may be extended at the ~~Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified~~ sole discretion of the Collateral ~~Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04~~Agent)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ the Issuer or any of ~~its Restricted Subsidiaries~~ the Guarantors be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertycovenant.

Appears in 1 contract

Samples: Indenture (Walter Energy, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ The Borrower and each Parent Guarantor (i) will cause each Wholly-Owned Domestic Subsidiary or any other Person that becomes a Wholly-Owned Domestic Subsidiary after the Closing Date (in each case, other than any Excluded Subsidiary, but only for so long as such Wholly-Owned Domestic Subsidiary or such Person remains an Excluded Subsidiary) to promptly, but no later than 20 Business Days after the date on which such Person becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (as such date may be extended by the Administrative Agent) and (ii) to the extent any Domestic Subsidiary of the Borrower, any Parent Guarantor or any other Person is or becomes a guarantor, or grants a security interest in any of its assets to support, with respect to the Exit Notes, the Exit Term Loan Credit Agreement and any Permitted Refinancing Indebtedness that refinances the Exit Notes or the Exit Term Loan Credit Agreement, but such Subsidiary or Person is not a Guarantor, the Borrower and the Parent Guarantors will cause such Subsidiary or Person to (A) become a Guarantor as described in the Guarantee Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit A and (B) grant security interests over any Collateral as described in the Pledge and Security Agreement by way of execution of a joinder agreement thereto substantially in the form attached thereto as Exhibit 10. (a) [Reserved]. (b) Subject to Section 9.17, the Borrower, Parent Guarantors and their Restricted Subsidiaries will cause (i) 100% of the Equity Interests of each Subsidiary that is a Guarantor and (ii) 100% of the Equity Interests of each Domestic Subsidiary and 65% of the aggregate of the total outstanding Voting Stock (and 100% of each class of issued and outstanding Equity Interest other than Voting Stock) of each Foreign Subsidiary held directly by the Borrower, any Parent Guarantor or any Subsidiary Guarantor (or, if less, the full amount owned by the Borrower, such Parent Guarantor and each such Subsidiary Guarantor), in each case, to be subject at all times to a perfected Lien in favor of the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the terms and conditions of the Security Documents and the Intercreditor Agreements, as applicable, and such other security documents as the Lead Lender shall reasonably request. (c) Subject to Section 9.17, the Loan Parties will (i) cause each loan or advance that is outstanding on or after the Closing Date to a Loan Party by a Restricted Subsidiary to be evidenced by an Intercompany Note duly executed and delivered, (ii) deliver such Intercompany Note to the Collateral Agent, together with an appropriate allonges or other endorsement reasonably satisfactory to the Lead Lender, and (iii) execute such Security Documents in connection with the pledge of such Intercompany Note as the Lead Lender may reasonably request. (d) The Borrower and the Parent Guarantors will, and will cause each of the ~~Subsidiary~~ other Loan Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates (including flood certificates and evidence of flood insurance if applicable), reports, control agreements (other than with respect to Excluded Assets) and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent in its Permitted Determination may reasonably request. Furthermore, the Borrower and the Parent Guarantors will, and will cause the other Loan Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent in its Permitted Determination to assure that this Section 9.13 has been complied with. (e) The Borrower and each other Loan Party shall, within one-hundred twenty (120) days following the Closing Date (as such date may be extended from time to time by the Lead Lender in its reasonable discretion), enter into one or more Cash Management Control Agreements as, and to the extent, required by Section 5.03(b). (f) Within one-hundred twenty (120) days (or such longer period as the Lead Lender may agree in its reasonable discretion) of the Closing Date (or, within one-hundred twenty (120) days of the date of acquisition by a Borrowing Base Party of any Material Real Property or such longer period as the Lead Lender may agree in its reasonable discretion): (i) The Borrower and the Parent Guarantors will, and will cause each Borrowing Base Party to, grant to the Collateral Agent for the ratable benefit of the Secured ~~Creditors security interests and~~ Parties Mortgages ~~in such assets and properties~~ (~~in the case of Real Property~~and, ~~limited to~~ if required by local law, related UCC fixture filings) over any Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such ~~security interests and~~ Mortgages ~~shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request~~(and, ~~including~~if applicable, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral AgentUCC fixture filings) shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens ~~with priority by virtue of applicable law and~~ subject to no other Liens except for Permitted ~~Liens~~Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement. The ~~Additional Security Documents~~ Mortgages (and related UCC filings) or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsMortgages. (bii) ~~Subject~~ In connection with each Mortgage delivered pursuant to clause (i) above, the Administrative Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Administrative Agent in its Permitted Determination, in an insured amount reasonably satisfactory to the Administrative Agent in its Permitted Determination insuring the Administrative Agent that the Mortgage on such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens and, subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ ABL/Term Loan/Notes Intercreditor Agreement, with ~~respect to any Person that is or becomes a Restricted Subsidiary~~ each such Mortgage Policy (~~or ceases~~ 1) to be ~~an Excluded Subsidiary) after~~ in form and substance reasonably satisfactory to the ~~Closing Date, Holdings and Borrower will~~Administrative Agent in its Permitted Determination, and ~~will cause each applicable Restricted Subsidiary to,~~ (i2) ~~deliver~~ to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each caseinclude, to the extent ~~required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement~~ applicable and ~~a joinder agreement to each applicable Security Document, substantially~~ available in the ~~form annexed thereto~~applicable jurisdiction at commercially reasonable rates, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions supplemental endorsements as ~~may be~~ reasonably requested by the Administrative Agent or in its Permitted Determination provided however, in lieu of a zoning endorsement the ~~Collateral~~ Administrative Agent ~~and~~ shall accept a zoning report. (iii) at In connection with each Mortgage delivered pursuant to clause (i) above, to induce the ~~reasonable request~~ title company to issue the Mortgage Policies referred to in clause (ii) above, the title company shall have received such affidavits, certificates, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the ~~Administrative Agent~~title company, ~~deliver or cause~~ together with payment by the Borrower of all Mortgage Policy premiums, search and examination charges, mortgage recording taxes, costs and expenses required for the recording of such Mortgages and issuance of such Mortgage Policies. (iv) In connection with each Mortgage delivered pursuant to ~~be delivered to~~ clause (i) above, the Administrative Agent shall have received either an ~~opinion, addressed~~ existing survey together with a no change affidavit sufficient for the title company to remove the ~~Administrative Agent~~ standard survey exception and issue the ~~other Lenders,~~ customary survey related endorsements or a new ALTA/ACSM Land Title survey of ~~counsel~~ the relevant Mortgaged Property (and all improvements thereon) in form and substance reasonably acceptable to the Administrative Agent as in its Permitted Determination. (v) In connection with each Mortgage delivered pursuant to ~~such matters set forth in this Section 9.12(b~~clause (i) as above, the Administrative Agent ~~may reasonably request. (c) Holdings and Borrower will, and will cause each~~ shall have received a “life of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency ~~standard flood hazard determinations~~ Standard Flood Hazard Determination with respect to each Mortgaged ~~Property and~~Property, in form and substance acceptable to the ~~extent any improved Mortgaged Property is located~~ Administrative Agent in ~~an area determined by the Federal Emergency Management Agency~~ its Permitted Determination (~~or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a~~ together with notice of about special flood hazard area status and flood disaster ~~assistance and~~assistance, ~~if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a~~ duly executed ~~acknowledgment of receipt thereof~~ by the Borrower and ~~(ii)~~ applicable Subsidiary and evidence of flood ~~insurance as required by Section 9.03 hereof. Notwithstanding anything~~ insurance, in the event any ~~Credit Document~~ improvements are located in a special flood hazard area) in accordance with the Flood Laws. (vi) In connection with each Mortgage delivered pursuant to clause (i) above, the Administrative Agent shall have received opinions of counsel for the Loan Parties in the jurisdiction where such Mortgaged Property is located, in form and substance reasonably satisfactory to the ~~contrary~~Administrative Agent in its Permitted Determination, if and such other documents as the Administrative Agent in its Permitted Determination reasonably requests. (g) In the event any perfection steps in respect of any Collateral ~~Agent~~ are taken for the benefit of the lenders or any ~~Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any~~ other secured party in respect of the ~~deliveries referred to in~~ Exit Term Loans or the ~~immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property~~Exit Notes, the ~~Credit Parties~~ Borrower shall ~~not be required~~ and shall cause its Restricted Subsidiaries to ~~grant a Mortgage on such Material Real Property~~ take the same steps in favor of ~~such Person or otherwise comply with~~ the ~~provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~Secured Parties.

Appears in 1 contract

Samples: Exit Abl Credit Agreement (Pyxus International, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in and ~~Mortgages in~~ mortgage liens on such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”)~~. All~~ ; provided that (a) the pledge of the outstanding capital stock of any FSHCO or CFC shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or CFC and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or CFC, (b) mortgage liens shall not be required with respect to any Real Property that is not Material Real Property and (c) security interests and mortgage liens shall not be required with respect to any assets or properties to the extent that such security interests or mortgage liens would result in a material adverse tax consequence to the Borrower or its Restricted Subsidiaries, as reasonably determined by the Borrower and ~~Mortgages~~ notified in writing to the Administrative Agent. All security interests and mortgage liens shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and ~~Mortgages~~ mortgage liens (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.the

Appears in 1 contract

Samples: Term Loan Credit Agreement (Performance Sports Group Ltd.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ Each Borrower will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties Subsidiaries to, at the expense of ~~Borrower~~such Borrower and its Subsidiaries, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments, and take such further steps relating to the collateral covered by any of the Pledge and Security Agreement, as the Collateral Agent may reasonably require in order to effect, protect or further evidence the grant or perfection of Liens provided for in the Pledge and Security Agreement, including, without limiting the foregoing, (1) with respect to any Pledge and Security Agreement Collateral relating to equity interests in any Person organized under the laws of any jurisdiction other than the United States or a State thereof (each a "Foreign Entity"), upon the ~~reasonable~~ request of ~~the Administrative Agent or~~ the Collateral Agent, ~~at Borrower’s expense~~each Borrower will, and will cause the respective Credit Party that owns the equity interest in such Foreign Entity (and the respective Foreign Entity) to, execute any ~~document~~ additional pledge or ~~instrument supplemental~~ other security agreements as may be reasonably requested by the Collateral Agent to ~~or confirmatory~~ protect the security interests required to be granted pursuant to the Pledge and Security Agreement pursuant to the requirements of applicable local law of such Foreign Entity and to take such further steps relating to such collateral as the ~~Security Documents~~ Collateral Agent may reasonably request and (2) to the extent ~~deemed~~ any assets are acquired by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its ~~Restricted~~ Subsidiaries after the date hereof which would constitute Pledge and Security Agreement Collateral, such Pledge and Security Agreement Collateral shall, to the extent required by the Pledge and Security Agreement, be delivered for pledge thereunder and any additional actions as required ~~to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give~~ above by the Collateral Agent ~~45 days written notice prior~~ shall be taken in connection therewith. Furthermore, each Borrower will cause to ~~granting any Mortgage~~ be delivered to the Collateral Agent ~~for the benefit~~ such opinions of ~~the Secured Creditors~~ counsel, and other related documents as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically may be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery reasonably requested by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.assure itself that this Section

Appears in 1 contract

Samples: Credit Agreement (Starwood Lodging Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the Subsidiary Guarantors to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings, Borrower~~ the Borrowers and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date ~~and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and~~ or otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or guarantee the obligations of ~~Borrower~~ the Borrowers under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor ~~Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Agreement and any ~~Additional~~ Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date~~, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to~~, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) solely in the case of any Foreign Subsidiary that Lead Xxxxxxxx has elected to cause to become a Subsidiary Guarantor, at the ~~reasonable~~ request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower~~ The Borrowers will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of Lead Borrower to, at the expense of Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, ~~Borrower~~ the Borrowers will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) ~~Borrower agrees~~ The Borrowers agree that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the ~~Administrative Agent or~~ Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Lead Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ the Borrowers or any of ~~its~~ their Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; ~~provided, further,~~ provided further that, ~~Borrower~~ the Borrowers shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to ~~Borrower~~ the Borrowers of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Lead Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency ~~Management~~ Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Lead Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Lead Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Lead Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any ~~Material Real~~ Mortgaged Property, the Credit Parties shall not be required to grant a Mortgage on such ~~Material Real~~ Mortgaged Property in favor of such Person or otherwise comply with respect to such Person with the provisions of the Credit Documents relating to ~~Mortgages with respect to such Material Real Property~~Mortgages.

Appears in 1 contract

Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ US Company will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors ~~security interests~~ Liens, hypothecs and Mortgages in such assets and ~~properties (in the case~~ owned Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ US Company and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such ~~security interests~~ Liens, hypothecs and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected ~~security interests~~ Liens, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens and, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall have been paid in full. ~~Notwithstanding~~ In connection with the delivery of any ~~other provision in this Agreement or any other Credit Document~~Mortgage, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower US Company will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party ~~together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case~~to, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested from time to time by the Administrative Agent or the ~~Collateral Agent and~~ Required Lenders, deliver (~~iii~~i) ~~at the reasonable request of~~ a Mortgage Policy issued by a title insurer reasonably satisfactory to the Administrative Agent, ~~deliver or cause to be delivered~~ in form and substance and in an amount reasonably satisfactory to the Administrative Agent ~~an opinion~~insuring that the Mortgage is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances, ~~addressed~~ (ii) a then current A.L.T.A. survey, certified to the Administrative Agent and the ~~other Lenders~~Collateral Agent by a licensed surveyor sufficient to allow the issuer of the Mortgage Policy to issue such Mortgage Policy without a standard survey exception (but permitting any matters that might be revealed by such A.L.T.A. survey to the extent such matters are reasonably satisfactory to the Administrative Agent), (iii) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, (iv) a zoning report with respect to such Mortgaged Property from a consultant reasonably satisfactory to the Administrative Agent, confirming that such Mortgaged Property and the use and occupancy thereof is compliant (i.e., conforming or legal nonconforming with full right to rebuild after a casualty without needing to achieve current conformity) with the zoning ordinances and entitlements applicable thereto and is not in violation of ~~counsel~~ the building ordinances applicable thereto, and (v) a certificate in a form reasonably acceptable to the Administrative Agent as (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Borrower) indicating that the property is not in a flood zone, or if the property is in a flood zone, evidence that appropriate insurance reasonably acceptable to ~~such matters set forth in this Section 9.12(b) as~~ the Administrative Agent ~~may reasonably request~~has been obtained. Notwithstanding anything herein to the contrary, (i) this Section 9.13(a) shall not apply to (and US Company and the other Credit Parties shall not be required to grant a Mortgage in) any Real Property the Fair Market Value of which is less than $15,000,000 or the Equivalent Amount thereof and (ii) no Real Property shall be taken as Collateral unless the Administrative Agent and the Lenders receive forty-five (45) days advance written notice and the Credit Parties are in compliance with Section 9.03 (including, for the avoidance of doubt, the final sentence of Section 9.03(a) with respect to such Real Property). (cb) ~~Holdings and Borrower~~ US Company will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~US Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Administrative Agent may reasonably require. Furthermore, US Company will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Administrative Agent and the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent or and the Collateral Agent ~~reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 9.13 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of US Company and the other Credit Parties constituting Collateral, ~~Borrower~~ US Company will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) ~~Borrower~~ US Company agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 9.13 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such ~~longer period~~ later date as may be agreed by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its sole discretion)~~, as the case may be~~; provided that, in no event will ~~Borrower~~ US Company or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section. (e) Notwithstanding anything contained in this Section ~~9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting~~ 9.13 or this Agreement or any ~~Mortgage~~ other Credit Document to the contrary, in no event shall (i) the assets of any of the UK Company, the Canadian Company or any other Foreign Subsidiary be pledged to secure the US Obligations or (ii) more than 65% of the voting securities of any Foreign Subsidiary Holding Company or first-tier Foreign Subsidiary held by the US Company or any Domestic Subsidiary be pledged to secure the US Obligations. (f) Subject to Section 9.13(e), if at any time a Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such Subsidiary shall have executed and delivered to Administrative Agent such Security Documents (or joinders thereto, in form and substance satisfactory to Administrative Agent) and other documents as are necessary (or advisable in Administrative Agent’s and Collateral Agent’s judgment) under Applicable Law in order to grant Collateral Agent for the benefit of the Secured Creditors a perfected First Priority security interest and Lien in the assets of, and ownership interests in, such Subsidiary and US Company or the applicable Credit Party shall execute and deliver an amendment to the applicable pledge agreement in form and substance satisfactory to Administrative Agent, together with stock certificates and promissory notes and other instruments endorsed in blank, to pledge its equity interests in such Subsidiary and all intercompany Loans to such Subsidiary. (g) Subject to Section 9.13(e), if at any time a Domestic Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as ~~required herein~~ is agreed to by the Administrative Agent in its sole discretion) such Domestic Subsidiary shall become a party to this Agreement, either as a US Borrower, US Guarantor and ~~shall not grant~~ Non-US Obligation Guarantor or as a US Guarantor and a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that such ~~Mortgage until~~ Subsidiary is to become a US Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the US Revolving Notes and the US Swingline Note. (i) If at any time a UK Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the ~~Collateral~~ Administrative Agent ~~has provided written notice~~ in its sole discretion) such UK Subsidiary shall become a party to this Agreement, either as a UK Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the ~~completion of all required flood insurance due diligence~~ event that such Subsidiary is to become a UK Borrower hereunder, by executing and ~~flood insurance compliance which notice states that~~ delivering to the ~~Collateral~~ Administrative Agent ~~is satisfied with~~ a counterpart to the ~~results thereof~~ UK Revolving Notes and the UK Swingline Note, (ii) if at any time a Canadian Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the ~~expiration~~ Administrative Agent in its sole discretion) such Canadian Subsidiary shall become a party to this Agreement, either as a Canadian Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that such ~~45 day period with no Lender having provided notice~~ Subsidiary is to become a Canadian Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the Canadian Revolving Note, and (iii) if at any time a Foreign Subsidiary that ~~it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it~~ is not ~~satisfied with~~ a UK Subsidiary or a Canadian Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the ~~results~~ Administrative Agent in its sole discretion) such Foreign Subsidiary shall become a party to this Agreement as a Non-US Obligation Guarantor by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement. (i) On or prior to the date on which any ~~such due diligence~~ Subsidiary becomes a Borrower or ~~compliance (~~a Guarantor under this Section 9.13, the Administrative Agent and the ~~date by which any Credit Party is required to deliver Mortgages hereunder~~ Lenders shall ~~automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of~~ have received from the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andParties, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area~~requested, ~~(i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status~~ all documentation and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as other information required by ~~Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary~~regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentenceincluding, ~~and determines it is in its best interest not to require a Mortgage on any Material Real Property~~without limitation, the ~~Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with~~ Patriot Act and the ~~provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~Beneficial Ownership Regulation.

Appears in 1 contract

Samples: Abl Credit Agreement (Mobile Mini Inc)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Guarantor to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in and Mortgages in on such assets and ~~properties~~ Real Property of Holdings and such other Guarantor (~~in the case of Real Property, limited to Material Real Property~~other than Excluded Collateral (including Excluded Equity Interests)) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the Security Documents in effect on the Closing Date ~~(other than assets constituting Excluded Collateral)~~ and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as ~~may be~~ amended, ~~amended and~~ restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent)~~ Borrower and shall ~~constitute~~constitute valid, ~~upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and~~ enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights Table of Contents and by equitable principles (regardless of whether enforcement is sought in equity or at law))) under applicable domestic law and perfected security interests, ~~subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement,~~ Mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, in each case, except for Permitted ~~Liens~~Liens and subject to the terms of the Intercreditor Agreement. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent the assets subject to the applicable Additional Security Document can be perfected by the actions required by such Additional Security Document), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all material taxes, fees and other charges payable in connection therewith shall be paid in full to the extent due and owing. Notwithstanding ~~any~~ the foregoing, this Section 9.11(a) shall not apply to (and Holdings, the Borrower and the other ~~provision in this Agreement or any other Credit Document, no Excluded Subsidiary~~ Guarantors shall not be required to ~~pledge~~ grant a Mortgage in) (i) any owned Real Property the Fair Market Value of ~~its assets~~ which (as reasonably determined by the Borrower) is less than or equal to ~~secure~~ $2,000,000 or (ii) any ~~obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Leasehold. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and ~~Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to~~ the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, but subject to the limitations set forth herein and the other Security Documents, make, execute, endorse, acknowledge, authorize, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory collateral assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent or~~ attorney, certificates, ALTA real property surveys in form and substance reasonably acceptable to the Collateral ~~Agent~~Agent (or existing ALTA surveys together with “affidavits of no-change” in a form acceptable to the Collateral Agent and the issuing title company to omit any exception for matters that a survey may show and to provide a “same as survey” endorsement to the Mortgage Policy), ~~at Borrower’s expense~~reports, assignments, and other documents, assurances or instruments and take such further steps relating to the Collateral covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ (other than Excluded Collateral) as the Collateral Agent may reasonably ~~necessary for~~ require. Furthermore, Holdings will, and will cause the ~~continued validity~~other Credit Parties to, ~~perfection and priority (subject~~ deliver to the ~~terms~~ Collateral Agent with respect to Mortgaged Properties (1) such customary opinions of counsel (including an opinion of counsel in the state in which such Mortgaged Property is located with respect to the enforceability of the ~~ABL Intercreditor Agreement~~form of Mortgage to be recorded in such state), (2) a lender’s Mortgage Policy in an amount not less than the ~~Pari Passu Intercreditor Agreement~~fair market value of such Mortgaged Property, ~~any Additional Junior Lien Intercreditor Agreement~~ together with a title report issued by a title company with respect thereto and ~~any Additional Pari Passu Intercreditor Agreement)~~ copies of all recorded documents listed as exceptions to title or otherwise referred to therein, in form and substance reasonably satisfactory to the Collateral Agent and insuring that the Collateral Agent has a first priority mortgage lien on such Mortgaged Property together with such endorsements as the Collateral Agent shall reasonably require, and evidence reasonably satisfactory to the Collateral Agent that the applicable Credit Party has paid to the title company or to the applicable Governmental Authorities all expenses and premiums of the ~~Liens on~~ title company and all other sums required in connection with the issuance of such Mortgage Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgage for such Mortgaged Property in the appropriate real estate records, (3) (A) a completed Flood Certificate with respect such Mortgaged Property, which Flood Certificate shall be addressed to the Collateral ~~covered thereby subject~~ Agent and otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Table of Contents (a) has been complied with. Notwithstanding the foregoing, nothing in this Agreement shall require any Credit Party to no (i) make any filings or take any other ~~Liens except for Permitted Liens~~ action to record or ~~as otherwise permitted~~ perfect the Collateral Agent’s Lien in any intellectual property outside the United States or (ii) take any actions in any non-U.S. jurisdiction or that are required by the ~~applicable Security Document~~laws of any non-U.S. jurisdiction in order to (x) create any security interests in assets located or titled outside of the U.S. or (y) perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction). (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) Holdings and the Borrower ~~agrees~~ agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 9.11 shall be completed ~~in no event later than 90~~ within 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (as such time may be extended by the Administrative Agent in its reasonable discretion). (e) After the Closing Date, upon (i) the formation or acquisition of any new Wholly-Owned Domestic Subsidiary (in each case, other than an Excluded Subsidiary) of the Borrower, (ii) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (iii) the designation in accordance with Section 9.12 of any existing Wholly-Owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary: within sixty (60) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in its reasonable discretion, the Borrower will (I) cause each such Domestic Subsidiary that is required to become a Guarantor to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) joinders to the applicable Security Documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent, subject to local law requirements, with the Security Table of Contents Documents in effect on the Closing Date), in each case granting Liens (subject to Permitted Liens) required by this Section 9.11, (II) cause such Restricted Subsidiary that is required to become a Guarantor to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected Liens to the extent required by the Credit Documents, and to otherwise comply with the requirements in this Section 9.11 or the Security Documents, (III) cause each such Domestic Subsidiary that is required to become a Guarantor (and the parent of each such Domestic Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be pledged pursuant to the Security Documents, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and (IV) cause each such Domestic Subsidiary that is required to become a Guarantor to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Credit Parties’ obligations under the Credit Documents. (f) Notwithstanding anything to the contrary contained in this Section 9.11, the Administrative Agent shall ~~otherwise agree~~not require perfection in, ~~including~~ and no Credit Party shall be required to perfect, any assets as to which the Administrative Agent shall determine in its reasonable discretion that the cost of perfecting a security interest in such asset is excessive in relation to the value of the security to be afforded thereby. (g) No Credit Party shall be required to obtain control agreements or perfect the Lien granted to the Collateral Agent by “control” with respect to any ~~Real Property acquired after~~ Collateral (including deposit accounts, securities accounts, etc.), other than (i) certificated Equity Interests of the ~~Closing Date that~~ Borrower ~~has notified~~ and, to the ~~Collateral Agent that it intends~~ extent constituting Collateral, its Restricted Subsidiaries, (ii) promissory notes and (iii) deposit accounts, securities accounts and other similar arrangements to ~~dispose~~ the extent a Lien is granted therein for the benefit of the credit providers under the ABL Agreement is perfected by “control”. (h) No Credit Party shall be required to obtain landlord lien waivers, bailment lien waivers or estoppels letters with respect to any leased property of such Credit Party. (i) Liens required to be granted from time to time pursuant to ~~a disposition permitted by~~ this Section ~~10.04)~~9.11 shall be subject to exceptions and limitations set forth in this Agreement and the other Credit Documents. (j) Notwithstanding anything to the contrary, as if the ~~case may be; provided that, in no event will~~ Borrower or any Subsidiary of ~~its Restricted Subsidiaries be~~ the Borrower is a primary obligor or provides a guarantee of and/or provides collateral security for the benefit of the holders of the Existing 2017 Notes or the credit providers under the ABL Facility (or, in each case, any Replacement Indebtedness in respect thereof) the Borrower or such Subsidiary, as applicable, shall, if not otherwise required to ~~take any action~~ do so under this Section 9.11, promptly provide a similar guaranty and collateral security (subject to ~~obtain consents from third parties~~ the terms of the Intercreditor Agreement) with respect to ~~its compliance with this Section 9.12; provided, further, that, Borrower shall give~~ the ~~Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent~~ Obligations for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyCreditors.

Appears in 1 contract

Samples: Credit Agreement (Capella Healthcare, Inc.)

Additional Security; Further Assurances; etc. (a) Each of Holdings and the Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ Credit Party to, ~~grant to the Collateral Agent for the benefit of the Secured Creditors security interests~~ execute any and ~~Mortgages in such assets~~ all further documents, financing statements, agreements and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent instruments (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”)~~. All~~ , and take all such ~~security interests~~ further actions (including the filing and ~~Mortgages shall~~ recording of financing statements, precautionary filings, fixture filings, mortgages, charges, deeds of trust and other documents), that may be ~~granted pursuant to documentation consistent with~~ required under any ~~Security Documents entered into on~~ applicable law and that the ~~Closing Date and shall include such other documents as~~ Administrative Agent or the ~~Collateral Agent~~ Required Lenders may reasonably request, ~~including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance~~ to cause the Collateral ~~Agent~~ and ~~(subject~~ Guarantee Requirement to ~~exceptions as are reasonably acceptable to~~ be and remain satisfied, all at the ~~Collateral Agent) shall constitute, upon taking all necessary perfection action (which~~ expense of the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit DocumentsParties. (b) ~~Subject to the terms of the ABL Intercreditor Agreement~~If, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary assets (other than an Excluded ~~Subsidiary~~Assets), including any owned (but not leased or ground-leased) Material Real Property or improvements thereto or any interest therein, are acquired by the Borrower or any other Credit Party or are held by any Subsidiary thereof on or after the time it becomes a Credit Party pursuant to Section 9.09 (~~A) execute~~ other than assets constituting Collateral under a ~~joinder agreement~~ Security Document that become subject to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by ~~the applicable~~ such Security Document upon acquisition thereof or constituting Excluded Assets), the Borrower will within 30 days of the acquisition thereof (or such longer time period as agreed by the Administrative Agent in its reasonable discretion) cause such assets to be ~~duly perfected~~ subjected to a Lien securing the ~~extent required by~~ Obligations and will take and cause the other Credit Parties to take, such ~~agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions~~ actions as ~~may~~ shall be necessary and reasonably requested by the Administrative Agent ~~or the Collateral Agent~~ to grant and perfect such Liens, including actions described in paragraph (~~iii~~a) ~~at the reasonable request~~ of ~~the Administrative Agent, deliver or cause to be delivered~~ this Section and as required pursuant to the ~~Administrative Agent an opinion, addressed to the Administrative Agent~~ “Collateral and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, Guarantee Requirement,” all at the expense of ~~Borrower, make, execute, endorse, acknowledge, file and/or deliver to~~ the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection Credit Parties and ~~priority (~~subject to the ~~terms~~ last paragraph of the ~~ABL Intercreditor Agreement~~definition of the term “Collateral and Guarantee Requirement.” In the event any Material Real Property is mortgaged pursuant to this Section 9.12(b), the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no Borrower or such other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989Credit Party, as ~~amended. (e) Borrower agrees that each action~~ applicable, shall be required ~~by clauses~~ to comply with the “Collateral and Guarantee Requirement” and paragraph (a~~) through (d~~) of this Section 9.12 ~~shall be completed in no event later than~~ within 90 days ~~after such action is required to be taken pursuant to such clauses or requested to be taken by~~ following the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose acquisition of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property or such longer time period as agreed by the Administrative Agent in ~~favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property~~its reasonable discretion.

Appears in 1 contract

Samples: Credit Agreement (ONESPAWORLD HOLDINGS LTD)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Except as otherwise provided in Section 9.13 and ~~Borrower~~ for Wholly-Owned Specified Subsidiaries (for so long as (and to the extent that) such Persons constitute Wholly-Owned Specified Subsidiaries), Magellan will, and will cause each of ~~the Subsidiary Guarantors~~ its Wholly-Owned Domestic Subsidiaries to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Magellan and ~~the Subsidiary Guarantors~~ such Wholly-Owned Domestic Subsidiaries as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”); provided, however, neither Magellan nor any Wholly-Owned Domestic Subsidiary of Magellan will be required to grant a Mortgage on any owned Real Property pursuant to this Section 8.12(a) unless the fair market value (as determined in good faith by Magellan) of such Mortgaged Property equals or exceeds $1,000,000. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall constitute, ~~upon taking all necessary perfection action~~ after appropriate filings have been made (~~which~~ to the ~~Credit Parties agree~~ extent required to ~~take pursuant to clause (e) below)~~ be so made), valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Magellan will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~Magellan, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Magellan will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (di) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Magellan and its Subsidiaries constituting Collateral, ~~Borrower will, at its own expense, provide to~~ the Administrative Agent shall, at Magellan’s expense, obtain appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ii) With respect to any Mortgage required to be granted pursuant to this Section 8.12, Magellan shall cause to be delivered to the Collateral Agent, in order to comply with the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Board of Governors of the Federal Reserve System), the following documents: (A) a completed standard flood hazard determination form, (B) if the applicable Real Property is located in a special flood hazard area, a notification to Magellan (a “Borrower Notice”) and (if applicable) a notification to Magellan that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing Magellan’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, Magellan’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent. (i) Magellan will cause each Wholly-Owned Specified Subsidiary of Magellan (whether existing on the Effective Date or thereafter created, established or acquired) that has not entered into any Credit Document because to have done so either (x) would have violated a law, regulation, rule, order, approval, license or other restriction applicable to such Wholly-Owned Specified Subsidiary and issued or imposed by any governmental authority or (y) would have reasonably been expected to cause such Wholly-Owned Subsidiary to fail to satisfy a net worth, net equity or capital requirement or similar calculation or requirement imposed on such Wholly-Owned Subsidiary by any governmental authority having jurisdiction of such Wholly-Owned Subsidiary due to the regulated nature of such Wholly-Owned Subsidiary’s operations, in either case to, upon such restrictions ceasing to (or to the extent that such restrictions do not) apply to such Wholly-Owned Specified Subsidiary, execute and deliver to the Collateral Agent counterparts of the Security Agreement, the Pledge Agreement and the Guaranty (to the extent that any such Credit Documents were not theretofore entered into by such Wholly-Owned Specified Subsidiary), together with all other relevant documentation (including opinions of counsel, resolutions, officers’ certificates and UCC financing statements) of the type described in Section 5 as such Wholly-Owned Specified Subsidiary would have had to deliver if it executed such Credit Documents on the Effective Date (after which time such Wholly-Owned Specified Subsidiary shall cease to constitute same); provided, however, no Wholly-Owned Foreign Subsidiary of Magellan shall be required to take any actions pursuant to this Section 8.12(d)(i). (ii) To the extent that the capital stock or other equity interests of any Subsidiary of Magellan have not theretofore been pledged to the Collateral Agent under the Pledge Agreement because to have done so would have violated a law, regulation, rule, order, approval, license or other restriction applicable to such Subsidiary and issued or imposed by any governmental authority due to the regulated nature of such Subsidiary’s operations, Magellan will, or will cause the other applicable Credit Party to, upon such restrictions ceasing to apply to such Subsidiary, pledge and deliver to the Collateral Agent pursuant to, and to the extent required by, the Pledge Agreement the capital stock or other equity interests of any such Subsidiary. (e) ~~Borrower~~ Magellan agrees that each action required by clauses (a) through (d) of this Section ~~9.12~~ 8.12 shall be completed as soon as possible, but in no event later than 90 30 days (or 10 days in the case of preceding clause (d)) after such action is required to be taken ~~pursuant to such clauses~~ or is requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)Lenders, as the case may be; provided that, in no event will ~~Borrower~~ Magellan or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided, further, that, Borrower shall give~~ 8.12. (f) No later than 30 days after the Effective Date (as such date may be extended by the Collateral Agent ~~45 days written notice prior to granting any Mortgage~~ in its sole discretion), the Borrower will deliver to the Collateral Agent ~~for the benefit of the Secured Creditors as required herein~~ fully executed bank account control agreements, in form and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery substance reasonably satisfactory to the Collateral ~~Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations~~ Agent, with respect to ~~each Mortgaged Property and, to~~ the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyPrimary Concentration Accounts.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Facility (Magellan Health Services Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Lead Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Lead Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Lead Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Lead Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Lead Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary that is a CFC, (ii) security interests and Mortgages shall not be required with respect to any Real Property that is not Material Real Property and (iii) security interests and Mortgages shall not be required with respect to any assets or properties to the extent that such security interests or Mortgages would result in a material adverse tax consequence to the Lead Borrower or its Restricted Subsidiaries, as reasonably determined by the Lead Borrower and notified in writing to the Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the~~ ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien~~ Intercreditor Agreement and ~~any Additional Pari Passu~~ the First Lien/Second Lien Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.Permitted

Appears in 1 contract

Samples: Second Lien Term Loan Credit Agreement (PAE Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each of the Credit Parties will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties security interests ~~and Mortgages~~ in such assets of such Credit Party and ~~properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date~~ such other Credit Party (other than ~~assets constituting~~ any Excluded ~~Collateral~~Assets) as are not covered by the original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests ~~and Mortgages~~ subject to no Liens (except ~~to the extent~~ for Permitted Liens, it being understood that ~~the enforceability thereof may~~ Liens permitted by Section 10.01(d) shall be ~~limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Parties will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~the Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request of the Administrative Agent~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, certificates, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require (to the extent ~~deemed by~~ such steps would not be inconsistent with the ~~Administrative Agent~~ Security Agreement or the Mortgages). Furthermore, each of the Credit Parties will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.12 has been complied with. (dc) If the Administrative ~~Agent or the Collateral~~ Agent reasonably determines that it or any of the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Credit Parties constituting Collateral, ~~Borrower~~ each Credit Party will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and, if Real Property is then being included in the Borrowing Base, each Lender. (ed) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or as such ~~longer period as~~ date may be extended by the Administrative Agent ~~or Collateral Agent shall otherwise agree~~in its sole discretion); provided, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ any Credit Party or any of ~~its Restricted~~ their respective Subsidiaries be required to take any action that is inconsistent with the Security Agreement or Mortgages, or any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Abl Credit Agreement (CVR Partners, Lp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in~~ Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute~~constitute valid, ~~upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid~~ enforceable and ~~enforceable~~ perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any~~ Section 8.12(a) shall not apply to (and the Borrower and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall not be required to ~~pledge~~ grant a Mortgage in) (i) any fee-owned Real Property the Fair Market Value of ~~its assets~~ which is less than $2,500,000 or (ii) any Leasehold (unless, in either case, a Mortgage on any such Real Property (including Leaseholds) is granted (or required to ~~secure any obligations of Borrower~~ be granted) under the Permitted Revolving Credit ~~Documents or guarantee the obligations of Borrower under the Credit~~ Facility Documents). (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrower will, and will cause the other Credit Parties that are Subsidiaries of the Borrower to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 8.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.12 shall be completed as promptly as practicable, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such ~~longer period~~ later date as may be agreed by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04in its sole discretion)~~, as the case may be~~; provided that, in no event will the Borrower or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.12 (it being understood that such commercially reasonable efforts shall not include the payment of any amount to third parties other than the payment of reasonable fees and disbursements of counsel to any such third party in connection therewith). (e) Within 60 days after any request by the Administrative Agent (or such later date as may be agreed by the Administrative Agent in its sole discretion), ~~further, that, Borrower shall give~~ with respect to any Equity Interests in one or more Persons organized under the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ laws of a non-U.S. jurisdiction which have been pledged pursuant to the Guaranty and Collateral Agreement, if the Administrative Agent ~~for~~ reasonably determines (based on advice of local counsel and to the ~~benefit~~ extent legally permitted by the relevant applicable foreign law) that it would be in the interests of the Secured Creditors ~~as required herein~~ that the respective Credit Party or Credit Parties which own such Equity Interests authorize, execute and ~~shall not grant such Mortgage until~~ deliver one or more additional pledge agreements governed by the laws of the jurisdiction or jurisdictions in which the Person or Persons whose Equity Interests are being pledged is (or are) organized, then the respective Credit Party or Credit Parties shall, subject to local law limitations, (i) so authorize, execute and deliver one or more such additional pledge agreements (each, as amended, modified, restated and/or supplemented from time to time, a “Foreign Pledge Agreement” and, collectively, the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof “Foreign Pledge Agreements”) and (ii) take such reasonable actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the ~~expiration of~~ security interests granted (or purported to be granted) by each such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing)Foreign Pledge Agreement. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) Foreign Pledge Agreement shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) ~~delivery~~ be prepared by local counsel reasonably satisfactory to the ~~Collateral~~ Administrative Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) ~~evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything~~ be in ~~any Credit Document~~ form and substance reasonably satisfactory to the ~~contrary~~Administrative Agent, if it being understood and agreed, however, in the ~~Collateral Agent~~ case of any Foreign Pledge Agreement entered into by the Borrower or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Propertyother Credit Party, the respective Credit ~~Parties~~ Party shall not be required to ~~grant~~ pledge more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a ~~Mortgage on~~ corporation (or treated as such ~~Material Real Property~~ for U.S. federal tax purposes) in ~~favor~~ support of its obligations (x) as a Borrower under the Credit Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Obligations of the Borrower (in the case of the other Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be required to be pledged in support of such ~~Person~~ obligations). In determining whether to require one or ~~otherwise comply~~ more Foreign Pledge Agreements as permitted above, the Administrative Agent shall (in its sole discretion) consider the costs of the actions required in connection with the ~~provisions~~ execution and delivery of the ~~Credit Documents relating~~ respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby. (f) To the extent any action which would otherwise have been required to ~~Mortgages~~ be taken pursuant to Sections 5.05(iii), 5.10 and 5.11 have not been taken on or prior to the Initial Borrowing Date as permitted by Section 5.10(b), then the Borrower shall cause all such actions to be taken as promptly as practicable after the Initial Borrowing Date, provided that in any event such actions shall be required to be completed within (x) 30 days after the Initial Borrowing Date in the case of actions otherwise required under Section 5.10(a) and (y) 60 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Sections 5.05(iii) and 5.11, in each case as such dates may be extended (with respect to ~~such Material Real Property~~a given action or actions) at the sole discretion of the Administrative Agent.

Appears in 1 contract

Samples: Credit Agreement (Semtech Corp)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets of Holdings and such other Credit Party (including, without limitation properties ~~(in~~ of Holdings and such other Credit Party acquired subsequent to the ~~case of Real Property, limited to Material Real Property~~Effective Date) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (~~other than assets constituting Excluded Collateral~~including, without limitation, with respect to any such property, pursuant to grants pursuant to the laws of Scotland) and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”); provided that no Credit Party shall be required to take any action to grant or perfect a security interest on any Excluded Asset. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, hypothecations superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall ~~be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~have been paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord lien waivers, collateral access agreements, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the ~~reasonable request~~ Collateral covered by any of the ~~Administrative~~ Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 7.12 has been complied with. (c) Holdings will cause (i) each Subsidiary (other than any Immaterial Subsidiary or Unrestricted Subsidiary) that is established, created or acquired after the Effective Date and (ii) each Non-Guarantor Subsidiary (other than an Unrestricted Subsidiary) that ceases to be an Immaterial Subsidiary, in each case, to become a Guarantor and a party (in such capacity, a “Grantor”) to the U.S. Security Agreement, the English Security Documents and/or such other Security Documents as may be required by the Collateral Agent such that the Collateral Agent, ~~at Borrower’s expense~~for the benefit of the Secured Creditors, has a first priority security interest (or if prior to the Escrow Release Date, a second-priority security interest) in all assets (other than Excluded Assets) of such Subsidiary or Non-Guarantor Subsidiary (as applicable). In addition, if, after the date hereof, any ~~document~~ Restricted Subsidiary of Holdings that is not already a Guarantor and a Grantor guarantees any other Indebtedness of Holdings or ~~instrument supplemental to or confirmatory~~ any Guarantor in excess of the De Minimum Guaranteed Amount, then that Subsidiary shall become a Guarantor and a Grantor. Any such Subsidiary shall become a Guarantor and a Grantor pursuant to this clause (c) by executing joinders to the Subsidiaries Guaranty and the applicable Security Documents in form and substance satisfactory to the ~~extent deemed~~ Administrative Agent whereby such Subsidiary shall guaranty the Obligations and grant a security interest to the Collateral Agent, for the benefit of the Secured Creditors, in the assets (other than Excluded Assets) of such Subsidiary and, in each case, delivering such documents to the Administrative Agent within 60 days of the date on which it was established, created or acquired or ceased to be an Immaterial Subsidiary, as applicable (or such later date as may be agreed by the Administrative Agent in its sole discretion), or within 15 days of the date on which it guaranteed such other Indebtedness (or such later date as may be agreed by the Administrative Agent in its sole discretion), as the case may be, together with any Officer’s Certificate and opinion which may be reasonably requested by the Administrative Agent. In connection with the execution of such Security Documents, such Subsidiary shall take or cause to be taken such other actions (including delivering properly completed Uniform Commercial Code financing statements) as may be necessary or advisable in the opinion of the Collateral Agent ~~reasonably necessary~~ to vest in the Collateral Agent, for the ~~continued validity~~benefit of the Secured Creditors, ~~perfection and~~ a first-priority perfected security interest (~~subject~~ or if prior to the ~~terms~~ Escrow Release Date, a second-priority perfected security interest) in such assets and to have such assets added to the Collateral and thereupon all provisions of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ this Agreement and ~~any Additional Pari Passu Intercreditor Agreement) of~~ the ~~Liens on~~ Security Documents relating to the Collateral ~~covered thereby subject~~ shall be deemed to ~~no other Liens except for Permitted Liens or~~ relate to such assets to the same extent and with the same force and effect. The requirements set forth above in this clause (c) are collectively referred to herein as ~~otherwise permitted by~~ the ~~applicable Security Document~~“Additional Guarantor Requirement”. (d) If Each of Holdings and the ~~Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property,~~ Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees agree that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 7.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such ~~longer period~~ later date as ~~the Administrative Agent or Collateral Agent shall~~ may be otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beprovided in such clauses; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property7.12.

Appears in 1 contract

Samples: Credit Agreement (Endeavour International Corp)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each of the Credit Parties will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Parties security interests ~~and Mortgages~~ in such assets of such Credit Party and ~~properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Intercreditor Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests ~~and Mortgages~~ subject to no Liens (except ~~to the extent~~ for Permitted Liens, it being understood that ~~the enforceability thereof may~~ Liens permitted by Section 10.01(d) shall be ~~limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ~~ABL~~ Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any~~ Section 9.12(a) shall not apply to (and the Company and the other Credit ~~Document, no Excluded Subsidiary~~ Parties shall not be required to ~~pledge~~ grant a Mortgage in) any Real Property unless a Mortgage is granted in respect of ~~its assets~~ such Real Property pursuant to ~~secure any obligations~~ the terms of ~~Borrower under~~ the ~~Credit~~ First Lien Debt Documents, the Second Lien Notes Documents, the Refinancing Second Lien Notes Documents, the New Notes Documents, the Refinancing New Notes Documents or ~~guarantee the obligations of Borrower under the Credit~~ any Qualified Secured Debt Documents. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Parties will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~the Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents ~~to the extent deemed by the Administrative Agent or~~ as the Collateral Agent may reasonably ~~necessary for~~ require. Furthermore, each of the ~~continued validity~~Credit Parties will, ~~perfection~~ and ~~priority (subject~~ will cause the other Credit Parties to, deliver to the ~~terms~~ Collateral Agent such opinions of ~~the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ counsel and ~~any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ other related documents as may be reasonably requested by the Collateral ~~covered thereby subject~~ Agent to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~assure itself that this Section 9.12 has been complied with. (dc) If the Administrative ~~Agent or the Collateral~~ Agent reasonably determines that it or any of the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Credit Parties constituting Collateral, ~~Borrower~~ each Credit Party will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and, if Real Property is then being included in the Borrowing Base, each Lender. (ed) ~~Borrower~~ Each Credit Party agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or as such ~~longer period as~~ date may be extended by the Administrative Agent ~~or Collateral Agent shall otherwise agree~~in its sole discretion); provided, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ any Credit Party or any of ~~its Restricted~~ their respective Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12~~; provided~~. (e) Each Borrower and each Guarantor shall, ~~further~~within 90 days following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion), ~~that~~enter into one or more Cash Management Control Agreements as, ~~Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ and to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increaseextent, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property5.03(b).

Appears in 1 contract

Samples: Abl Credit Agreement (CVR Energy Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary or a Canadian Subsidiary, ~~and~~ but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests in such Collateral of such Borrower and ~~Mortgages (except to the extent that the enforceability thereof may be limited~~ such Restricted Subsidiaries as are not covered by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Second Restatement Effective Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary or a Canadian Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Second Restatement Effective Date with respect to the Security Documents delivered on the Original Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitation set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of ~~Borrower~~the Company, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at ~~Borrower’s~~ Company's expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, without limiting any requirement to take any Additional Account Security Action set forth in the definition of the term "Eligible Accounts" solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States or Canada) for inclusion in the Borrowing Base, it being understood that in no event will ~~Borrower or any of its Restricted Subsidiaries~~ the Credit Parties be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.10. (e) (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, ~~further~~to request Account Debtor notifications in the relevant Account Debtor Approved Countries (including Account Debtor notifications in respect of Eligible Costco Foreign Accounts, ~~that~~if requested by the Administrative Agent in its sole discretion), ~~Borrower~~ the Relevant Borrowers shall ~~give~~ provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent's security interest in the Accounts owing by such Account Debtors. (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Second Restatement Effective Date (or, in each such case, with respect to any Person that is or becomes after the Second Restatement Effective Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Second Restatement Effective Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an "Additional Mortgage"), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 1 contract

Samples: Credit Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each of the Borrowers will, and will cause each of the US Subsidiary Guarantors, Canadian Guarantors and Related Foreign Company Guarantors to, grant to the Collateral ~~Agent~~ Agent, for the benefit of the Secured Creditors described in the Security Documents to which such Credit Party is a party, security interests ~~and Mortgages~~ in such assets and properties of such Credit Party (~~in the case of Real Property, limited to Material~~ other than Real Property) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents to which such Credit Party is a party, or as may be ~~reasonably~~ requested from time to time by the ~~Collateral Agent~~ Required Lenders (~~collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “Additional Security Documents”). ~~All such~~ Such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and shall (~~subject~~ except as otherwise consented to ~~exceptions as are reasonably acceptable to~~ by the ~~Collateral Agent~~Required Lenders) ~~shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, except ~~for~~ Permitted Liens. The Additional Security Documents or other instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent) the Liens~~ Liens, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document~~connection therewith shall have been paid in full; provided, however, (x) except as may be provided in the respective Security Documents with respect to the exercise of remedies, no ~~Excluded Subsidiary~~ filings shall be required to be with respect to intellectual property in the United States Patent and Trademark Office, the United States Copyright Office or any similar office in any foreign country, and (y) no US Pledge Agreement that is governed by local law shall be required for the capital stock of any Foreign Subsidiary of Silgan that is owned directly by a US Credit Party unless such Foreign Subsidiary is either a Canadian Subsidiary or a Material Foreign Subsidiary. Notwithstanding the foregoing, (i) unless otherwise permitted (or not restricted) by the applicable CanCo Restrictions then in effect, any Additional Security Documents entered into by CanCo shall only secure CanCo’s direct obligations under the Credit Documents to which it is a party, and (ii) except as, and to the extent, provided in Section 7.10, no Foreign Credit Party shall be required to guaranty the Obligations of any US Credit Party or pledge ~~any of~~ its assets to secure the Obligations of any ~~obligations of Borrower under the~~ US Credit ~~Documents or guarantee the obligations of Borrower under the Credit Documents~~Party. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Borrowers will, and will cause each of the other Credit Parties to, at ~~the expense of Borrower~~its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, landlord-lender agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrowers shall cause to be delivered to the ~~extent deemed~~ Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Administrative Agent or to assure themselves that this Section 7.09 has been complied with. (c) Each US Credit Party also shall use its commercially reasonable efforts to deliver to the Collateral Agent ~~reasonably necessary for the continued validity, perfection and priority (subject~~ fully executed deposit account control agreements with respect to the ~~terms of~~ US Credit Parties’ deposit accounts as, and to the ~~ABL Intercreditor Agreement~~extent, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted required by the ~~applicable~~ US Security ~~Document~~Agreement. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Borrowers agrees that each action required above by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 7.09 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ either requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or ~~such longer period as~~ otherwise required to be taken by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)respective Credit Parties, as the case may ~~be; provided that~~be (as such date may be extended by the Administrative Agent in its sole discretion). (e) At such time as the applicable CanCo Restrictions cease to be effective, ~~in no event~~ (i) Silgan will ~~Borrower or any of its Restricted Subsidiaries be required~~ cause CanCo Holding to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage pledge and deliver to the Collateral Agent ~~for~~ pursuant to the ~~benefit~~ US Pledge Agreement all of the ~~Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower~~ capital stock of ~~the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and~~ CanCo, (ii) CanCo will execute and deliver to the ~~expiration~~ Administrative Agent a counterpart of the US Borrowers/Subsidiaries Guaranty and (iii) CanCo will deliver to the Administrative Agent such ~~45 day period with~~ officer’s certificates, board of directors resolutions and opinions of counsel as may be reasonably requested by, and in form, scope and substance reasonably satisfactory to, the Administrative Agent. (f) Notwithstanding anything to the contrary contained in this Section 7.09 or elsewhere in this Agreement (or in any other Credit Document), (x) no ~~Lender having provided notice~~ Foreign Subsidiary of Silgan, other than a Canadian Subsidiary or a Material Foreign Subsidiary that is a Foreign Credit Party, shall be required to ~~Borrower that it has not completed~~ pledge or otherwise xxxxx x Xxxx in any ~~necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with~~ of its assets to secure the ~~results~~ Obligations of any ~~such due diligence or compliance~~ Foreign Credit Party, (~~and the date by which any~~ y) at all times during a Foreign Subsidiary Exclusion Period, a Material Foreign Subsidiary that is a Foreign Credit Party is (other than a Canadian Subsidiary) shall only be required to ~~deliver Mortgages hereunder shall automatically be extended~~ xxxxx x Xxxx on assets that constitute capital stock (including the proceeds thereof and security entitlements therein) of another Subsidiary of Silgan to secure the ~~extent necessary to comply with~~ Obligations of any Foreign Credit Party, and (z) at all times from and after the ~~foregoing). Each~~ end of a Foreign Subsidiary Exclusion Period, each Material Foreign Subsidiary that is a Foreign Credit Party, within 60 days thereafter (or such later date as determined in the sole discretion of the ~~parties hereto acknowledges~~ Administrative Agent), shall grant such Liens and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations enter into such Additional Security Documents with respect to ~~each Mortgaged Property and, to~~ all of the ~~extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency)~~ assets of such Material Foreign Subsidiary required to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything pledged in ~~any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied~~ accordance with the ~~results~~ terms of ~~any flood insurance due diligence or flood insurance compliance or any of the deliveries referred~~ this Agreement without giving effect to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyclause (y).

Appears in 1 contract

Samples: Credit Agreement (Silgan Holdings Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Except during a Collateral Release Period and ~~Borrower~~ other than with respect to an Excluded Entity (as defined in the US Pledge Agreement), each of the Borrowers will, and will cause each of the US Subsidiary Guarantors, Canadian Guarantors, Dutch Guarantors and Related Foreign Company Guarantors to, grant to the Collateral ~~Agent~~ Agent, for the benefit of the Secured Creditors described in the Security Documents to which such Credit Party is a party, security interests in the capital stock and ~~Mortgages in~~ other equity interests of the Subsidiaries owned by such ~~assets and properties~~ Credit Party (which, in the case of ~~Real Property~~Foreign Subsidiaries (other than Canadian Subsidiaries) owned by a Foreign Credit Party, shall be limited to Material ~~Real Property~~Subsidiaries organized in the country of such Foreign Credit Party which are directly owned by such Foreign Credit Party) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents to which such Credit Party is a party, or as may be ~~reasonably~~ requested from time to time by the ~~Collateral Agent~~ Required Lenders (~~collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “Additional Security Documents”)) . ~~All such~~ Such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and shall (~~subject~~ except as otherwise consented to ~~exceptions as are reasonably acceptable to~~ by the ~~Collateral Agent~~Required Lenders) ~~shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, except ~~for~~ Permitted Liens. The Additional Security Documents or other instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent) the Liens~~ Liens, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full; provided, however, no US Pledge Agreement that is governed by local law shall be required for the capital stock of any Foreign Subsidiary of Silgan that is owned directly by a US Credit Party unless such Foreign Subsidiary is either a Canadian Subsidiary, Dutch Subsidiary or a directly owned Foreign Credit Party. Notwithstanding ~~any other provision~~ the foregoing, except as, and to the extent, provided in ~~this Agreement or any other~~ Section 8.10, (i) no Foreign Credit ~~Document, no Excluded Subsidiary~~ Party shall be required to ~~pledge~~ guaranty the Obligations of any US Credit Party or have any equity interests owned by it secure the Obligations of ~~its assets~~ any US Credit Party and (ii) to ~~secure any obligations~~ the extent required, a Credit Party shall only be required to execute and deliver Additional Security Documents in connection with a Restructuring Transaction upon completion of ~~Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~such Restructuring Transaction. (b) ~~Subject to the terms~~ Each of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower Borrowers will, and will cause each of the other Credit Parties to, at ~~the expense of Borrower~~its own expense, ~~make, execute, endorse, acknowledge, file and/or~~ deliver to the Collateral ~~Agent, promptly, upon the reasonable request of the Administrative~~ Agent agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Borrowers shall cause to be delivered to the ~~extent deemed~~ Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity~~to assure themselves that this Section 8.09 (and, ~~perfection and priority (subject to the terms of the ABL Intercreditor Agreement~~if applicable, ~~the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement~~Section 8.10) ~~of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~has been complied with. (dc) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Borrowers agrees that each action required above by clauses (a) ~~through~~ and (db) of this Section ~~9.12~~ 8.09 shall be completed as soon as possible, but in no event later than 90 days after such action is ~~required to be taken pursuant to such clauses or~~ either requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or ~~such longer period as~~ otherwise required to be taken by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04)respective Credit Parties, as the case may ~~be; provided that,~~ be (as such date may be extended by the Administrative Agent in no its sole discretion). (d) In the event ~~will~~ that any Borrower or any of its ~~Restricted~~ Subsidiaries ~~be required~~ which are Credit Parties changes its legal name or jurisdiction of organization, (i) it will give to ~~take any action to obtain consents from third parties~~ the Administrative Agent and the Collateral Agent prompt written notice clearly describing such new name and/or jurisdiction of organization and providing such other information in connection therewith as the Administrative Agent and the Collateral Agent may reasonably request, and (ii) with respect to ~~its compliance with this Section 9.12; provided~~such new name and/or jurisdiction of organization, ~~further~~it shall take all action, ~~that, Borrower shall give~~ reasonably satisfactory to the Administrative Agent and the Collateral ~~Agent 45 days written notice prior~~ Agent, to ~~granting~~ maintain the security interests granted by any ~~Mortgage~~ Borrower or any such other Credit Party to the Collateral Agent ~~for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i)~~ in the Collateral ~~Agent has provided written notice~~ pursuant to ~~Borrower of the completion of~~ any Security Document at all ~~required flood insurance due diligence~~ times fully perfected and ~~flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof~~ in full force and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyeffect.

Appears in 1 contract

Samples: Credit Agreement (Silgan Holdings Inc)

Additional Security; Further Assurances; etc. (a) Subject to clause (e) of this Section 8.12, Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrower, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (or otherwise required at such time pursuant to the Security Documents, subject to the terms of the Intercreditor Agreements) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and the Required Lenders and shall constitute valid and enforceable (x) First Priority (subject to ~~exceptions as are reasonably acceptable to~~ the ~~Collateral Agent~~terms of the Intercreditor Agreements) ~~shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable~~ perfected security ~~interests~~ interests, hypothecations and Mortgages with respect to Term Loan Priority Collateral and (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ y) Second Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the ABL Intercreditor Agreement) perfected security interests, ~~the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ hypothecations and ~~any Additional Pari Passu Intercreditor Agreement, superior~~ Mortgages with respect to ~~and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens~~ABL Facility Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrower, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 8.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to grant a security interest or Mortgage in) (i) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of either the ABL Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 9.04(r), (ii) any motor vehicles, (iii) [reserved] or (iv) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to ~~the terms~~ clause (e) of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Datethis Section 8.12, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon~~ financing statements (including, but not limited to, UCC fixture filings to be filed along with the ~~reasonable request~~ applicable Mortgages), transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents to as the ~~extent deemed by the Administrative~~ Collateral Agent or the ~~Collateral Agent~~ Required Lenders may reasonably ~~necessary for the continued validity~~require, ~~perfection and priority (~~subject to the terms of the ABL Intercreditor Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Holdings and the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any local law pledge and/or security agreements or taking other actions with respect thereto, be required. Furthermore, in the case of additional Real Property Collateral, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located, surveys or survey updates or ExpressMaps, as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without a standard survey exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the ~~Pari Passu Intercreditor Agreement~~Collateral Agent or the Required Lenders to assure itself or themselves, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as ~~otherwise permitted by the applicable Security Document~~applicable, that this Section 8.12 has been complied with. (dc) If the ~~Administrative Agent or the Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or~~ the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, subject to clause (e) of this Section 8.12, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 8.12, the Borrower ~~agrees~~ shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Holdings and the Borrower agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (or 30 days in the case of clauses (f) and (g) of this Section 8.12) after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period of time as may be agreed to by the ~~Administrative Agent or Collateral Agent shall otherwise agree~~Required Lenders in their discretion); provided, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents ~~from~~ from, or actions by, third parties with respect to its compliance with this Section ~~9.12; provided~~8.12. (f) Holdings will cause each Person that becomes a Subsidiary (other than an Excluded Subsidiary) after the Closing Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, ~~further~~and to the extent required by, ~~that, Borrower shall give~~ the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Security Agreement and deliver to the Collateral Agent ~~for~~ the ~~benefit of the Secured Creditors as required herein and shall not grant~~ certificates, if any, representing such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied stock or other Equity Interests, together with ~~the results thereof and~~ stock or other appropriate powers duly executed in blank, (ii) become a party to each of the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with Guaranty, the ~~results of any such due diligence or compliance~~ Security Agreement, the Intercreditor Agreements (if required thereby) and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and ~~the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended~~ a Copyright Security Agreement, and (iii) to the extent ~~necessary~~ requested by the Administrative Agent or the Required Lenders, take all actions required pursuant to ~~comply with the foregoing)~~this Section 8.12. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral Agent or the Required Lenders, each new Subsidiary that is required to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in execute any Credit Document shall execute and deliver, or cause to ~~the contrary~~be executed and delivered, ~~if the Collateral Agent or any Lender is not satisfied with the results~~ all other relevant documentation (including opinions of ~~any flood insurance due diligence or flood insurance compliance or any~~ counsel) of the ~~deliveries referred~~ type described in Section 5 as such new Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Closing Date. Notwithstanding the foregoing in ~~the immediately preceding sentence~~this clause (f), ~~and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties~~ (a) no Foreign Subsidiary shall ~~not~~ be required to ~~grant a Mortgage on such Material Real Property in favor~~ enter into security documentation governed by the laws of the local jurisdiction of organization of such ~~Person or otherwise comply with~~ Foreign Subsidiary and (b) no Credit Party that owns capital stock any Foreign Subsidiary shall be required to pledge the ~~provisions~~ capital stock of such Foreign Subsidiary pursuant to security documentation governed by the laws of the local jurisdiction of organization of such Foreign Subsidiary; provided, that such Foreign Subsidiary shall execute the Guaranty and Security Agreement and such Credit ~~Documents relating~~ Party shall pledge such capital stock pursuant to ~~Mortgages with respect~~ the Security Agreement. (g) In addition, promptly after any Subsidiary of the Borrower that is an Excluded Subsidiary ceases to constitute an “Excluded Subsidiary”, the Borrower shall cause such ~~Material Real Property~~Subsidiary to take all actions required by this Section 8.12 as if such Subsidiary were then established, created or acquired.

Appears in 1 contract

Samples: Term Loan Credit Agreement (J.Jill, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower will, and will cause each~~ No later than 75 days following the Initial Borrowing Date (in the case of the Company and the Initial Subsidiary ~~Guarantors to~~Guarantors) or the Initial B Term Loan Date, ~~grant~~ (in the case each Additional Subsidiary Guarantor) the Collateral Agent shall have received: (A) fully executed counterparts of deeds of trust, mortgages or amendments to such documents and similar documents in each case in form and substance reasonably satisfactory to the Collateral Agent (each a "Mortgage" and collectively, the "Mortgages") covering all the Mortgaged Properties owned by the Company and/or any Subsidiary Guarantor, for recording in all places to the extent necessary or desirable, in the reasonable judgment of the Collateral Agent, effectively to create a valid and enforceable first priority Lien, subject only to Liens permitted pursuant to Section 8.03(d), on each such Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured ~~Creditors security interests and Mortgages in~~ Creditors; -101- -43- (B) mortgagee title insurance policies on each such ~~assets and properties (in the case of Real Property, limited~~ Mortgaged Property issued by Chicago Title Insurance Company or other title insurers reasonably satisfactory to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (~~collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time~~ the "Mortgage Policies") in amounts satisfactory to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent ~~may reasonably request~~assuring the Collateral Agent that the Mortgages on such Mortgaged Properties are valid and enforceable first priority mortgage liens on the respective Mortgaged Properties, ~~including, but not limited to, title policies, surveys~~ free and ~~opinions~~ clear of ~~counsel,~~ all defects and encumbrances except Permitted Liens and such Mortgage Policies shall otherwise ~~reasonably satisfactory~~ be in form and substance reasonably satisfactory to the Collateral Agent and ~~(subject to exceptions~~ shall include, as ~~are~~ reasonably ~~acceptable to the Collateral Agent) shall constitute~~appropriate and where available, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor an endorsement for future advances under this Agreement and ~~any Additional Pari Passu Intercreditor Agreement, superior to~~ the Notes and ~~prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except~~ for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states matter that the Collateral Agent ~~is satisfied with the results thereof~~ in its reasonable discre- tion may reasonably request, when practicable, shall not include an exception for mechanics' liens, and ~~(ii) the expiration of~~ shall provide for affirmative insurance and such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to reinsurance as the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.discretion may reasonably request; and

Appears in 1 contract

Samples: Credit Agreement (Zurn Industries Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Borrower to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings,~~ the Borrower and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Borrower as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”); provided that (i) the pledge of the outstanding capital stock of any FSHCO or Foreign Subsidiary directly owned by the Borrower or a Domestic Subsidiary that is a Credit Party shall be limited to (x) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or Foreign Subsidiary and (y) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or Foreign Subsidiary, (ii) security interests and Mortgages shall not be required with respect to any Real Property that is not Material Real Property and (iii) security interests and Mortgages shall not be required with respect to any assets or properties to the extent that such security interests or Mortgages would result in a material adverse tax consequence to the Borrower or its Restricted Subsidiaries, as reasonably determined by the Borrower and notified in writing to the Administrative Agent. All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Subsidiary of a CFC shall be required to pledge any of its assets to secure any obligations of the Borrower under the Credit Documents or guarantee the obligations of the Borrower under the Credit Documents. (b) Subject to the terms of the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ Intercreditor Agreement, with respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing Date, ~~Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to,~~ promptly (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such ~~Restricted~~ Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such ~~Restricted~~ Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (~~in each case,~~ to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to the Subsidiaries Guaranty ~~Agreement~~ and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may ~~reasonably~~ reasonable request. (c) ~~Holdings and~~ The Borrower will, and will cause each of the other Credit Parties that are Restricted Subsidiaries of the Borrower to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent ~~or the Collateral Agent~~ reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (e) the Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will the Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Term Loan Credit Agreement

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ Each Credit Party will~~, and will cause each of the Subsidiary Guarantors to~~, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents to the extent required thereunder and as may be reasonably requested from time to time by the Administrative Agent, the Collateral Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”). All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection (or the equivalent with respect to each Canadian Credit Party under Applicable Law in Canada) action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected (or the equivalent with respect to each Canadian Credit Party under Applicable Law in Canada) security interests ~~and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, in each case, except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit ~~Document~~Document and solely with respect to the U.S. Subfacility and the U.S. FILO Subfacility, no ~~Excluded~~ FSHCO, Foreign Subsidiary, or Domestic Subsidiary of a Foreign Subsidiary that is a CFC shall be required to ~~pledge~~ pledge, nor shall the U.S. Collateral include, any of its assets to secure any obligations of the U.S. Credit Parties under the Credit Documents relating to the U.S. Subfacility or the U.S. FILO Subfacility or guarantee the obligations of the Lead Borrower under the Credit Documents relating to the U.S. Subfacility or ~~guarantee~~ the ~~obligations of Borrower under the Credit Documents~~U.S. FILO Subfacility. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with With respect to any ~~Person~~ person that is or becomes a Restricted Subsidiary ~~(or ceases to be an Excluded Subsidiary)~~ after the Closing ~~Date~~Date (including, ~~Holdings and Borrower will~~without limitation, ~~and will cause each~~ upon the formation of any Subsidiary that is a Division Successor), the applicable Credit Party that is the parent of such Restricted Subsidiary ~~to, (i) deliver to the Collateral Agent the certificates, if any, representing all (~~or ~~such lesser amount as is required) of the Equity Interests of~~ such Restricted Subsidiary, ~~together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by~~ as applicable, shall promptly (i) if a ~~duly authorized officer of the holder(s) of such Equity Interests~~Domestic Subsidiary, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Domestic Subsidiary (other than an Excluded Subsidiary) to (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Borrower, or to the Credit Party Guaranty ~~Agreement~~ set forth herein to join as a Guarantor and a joinder agreement to each applicable Security Document, substantially in the form annexed ~~thereto,~~ thereto and (B) cause such new Domestic Subsidiary to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, (ii) if a Canadian Subsidiary, cause such Canadian Subsidiary (other than an Excluded Subsidiary) (A) to execute a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent to join as a Canadian Subsidiary Guarantor, and to the Credit Party Guaranty set forth herein to join as a Canadian Subsidiary Guarantor and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto or to execute an applicable Security Document, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; and (iii) at the ~~reasonable~~ request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) ~~Holdings and Borrower will~~To the extent required under the Credit Documents, ~~and will cause~~ each of the ~~other Credit Parties to~~Lead Borrower and each Restricted Subsidiary will, at the expense of the Lead Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Lead Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security ~~Documents to the extent~~ Documents, including opinions of counsel, or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of~~ Lead Borrower and the ~~Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e)~~ Canadian Borrower agrees that each action required by clauses (a) through (dc) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, ~~the~~ Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, except with respect to Deposit Account Control Agreements, in no event will the Lead Borrower, the Canadian Borrower or any of ~~its~~ their Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Credit Agreement (Ryerson Holding Corp)

Additional Security; Further Assurances; etc. (a) Subject to clause (e) of this Section 8.12, Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrower, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in the case~~ Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (or otherwise required at such time pursuant to the Security Documents, subject to the terms of the Subordination Agreement) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent)~~ Required Lenders and shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages ~~(except~~ with respect to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted LiensCollateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrower, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 8.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to grant a security interest or Mortgage in) (i) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of either the ABL Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 9.04(r), (ii) any motor vehicles, (iii) [reserved] or (iv) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to ~~the terms~~ clause (e) of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Datethis Section 8.12, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon~~ financing statements (including, but not limited to, UCC fixture filings to be filed along with the ~~reasonable request~~ applicable Mortgages), transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents to as the ~~extent deemed by the Administrative~~ Collateral Agent or the ~~Collateral Agent~~ Required Lenders may reasonably ~~necessary for the continued validity~~require, ~~perfection and priority (~~subject to the terms of the ~~ABL Intercreditor~~ Subordination Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Holdings and the other Credit Parties shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any local law pledge and/or security agreements or taking other actions with respect thereto, be required. Furthermore, in the case of additional Real Property Collateral, Holdings will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the mortgaged Real Property is located, surveys or survey updates or ExpressMaps, as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without a standard survey exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the ~~Pari Passu Intercreditor Agreement~~Collateral Agent or the Required Lenders to assure itself or themselves, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as ~~otherwise permitted by the applicable Security Document~~applicable, that this Section 8.12 has been complied with. (dc) If the ~~Administrative Agent or the Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or~~ the Lenders are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, subject to clause (e) of this Section 8.12, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 8.12, the Borrower ~~agrees~~ shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Holdings and the Borrower agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 days (or 30 days in the case of clauses (f) and (g) of this Section 8.12) after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period of time as may be agreed to by the ~~Administrative Agent or Collateral Agent shall otherwise agree~~Required Lenders in their discretion); provided, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents ~~from~~ from, or actions by, third parties with respect to its compliance with this Section ~~9.12; provided~~8.12. (f) Holdings will cause each Person that becomes a Subsidiary (other than an Excluded Subsidiary) after the Closing Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, ~~further~~and to the extent required by, ~~that, Borrower shall give~~ the ~~Collateral Agent 45 days written notice prior to granting any Mortgage~~ Security Agreement and deliver to the Collateral Agent ~~for~~ (or its agent, bailee or designee, including the ~~benefit of~~ Priming Facility Agent, the ~~Secured Creditors as required herein and shall not grant such Mortgage until (i~~Existing Term Loan Agent or the ABL Agent in accordance with the Subordination Agreement) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied certificates, if any, representing such stock or other Equity Interests, together with ~~the results thereof and~~ stock or other appropriate powers duly executed in blank, (ii) become a party to each of the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with Guaranty, the ~~results of any such due diligence or compliance~~ Security Agreement, the Subordination Agreement (if required thereby) and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and ~~the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended~~ a Copyright Security Agreement, and (iii) to the extent ~~necessary~~ requested by the Administrative Agent or the Required Lenders, take all actions required pursuant to ~~comply with the foregoing)~~this Section 8.12. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral Agent or the Required Lenders, each new Subsidiary that is required to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in execute any Credit Document shall execute and deliver, or cause to ~~the contrary~~be executed and delivered, ~~if the Collateral Agent or any Lender is not satisfied with the results~~ all other relevant documentation (including opinions of ~~any flood insurance due diligence or flood insurance compliance or any~~ counsel) of the ~~deliveries referred~~ type described in Section 5 as such new Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Closing Date. Notwithstanding the foregoing in ~~the immediately preceding sentence~~this clause (f), ~~and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties~~ (a) no Foreign Subsidiary shall ~~not~~ be required to ~~grant a Mortgage on such Material Real Property in favor~~ enter into security documentation governed by the laws of the local jurisdiction of organization of such ~~Person or otherwise comply with~~ Foreign Subsidiary and (b) no Credit Party that owns capital stock any Foreign Subsidiary shall be required to pledge the ~~provisions~~ capital stock of such Foreign Subsidiary pursuant to security documentation governed by the laws of the local jurisdiction of organization of such Foreign Subsidiary; provided, that such Foreign Subsidiary shall execute the Guaranty and Security Agreement and such Credit ~~Documents relating~~ Party shall pledge such capital stock pursuant to ~~Mortgages with respect~~ the Security Agreement. (g) In addition, promptly after any Subsidiary of the Borrower that is an Excluded Subsidiary ceases to constitute an “Excluded Subsidiary”, the Borrower shall cause such ~~Material Real Property~~Subsidiary to take all actions required by this Section 8.12 as if such Subsidiary were then established, created or acquired.

Appears in 1 contract

Samples: Subordinated Term Loan Credit Agreement (J.Jill, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ The Parent will, and will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties that are Restricted Subsidiaries of the Parent to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in and ~~Mortgages in~~ mortgage liens on such assets and properties (in the case of Real Property, limited to Material Real Property) of ~~Holdings, Borrower~~ the Parent and such other Credit Parties that are Restricted Subsidiaries of the ~~Subsidiary Guarantors~~ Parent as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as may be amended, ~~amended and restated, modified, supplemented, extended~~ modified or ~~renewed~~ supplemented from time to time, the “Additional Security Documents”)~~. All~~ ; provided that (b) the pledge of the outstanding capital stock of any FSHCO or CFC shall be limited to (c) no more than sixty-five percent (65%) of the total combined voting power for all classes of the voting Equity Interests of such FSHCO or CFC and (d) one-hundred percent (100%) of the non-voting Equity Interests of such FSHCO or CFC, (e) mortgage liens shall not be required with respect to any Real Property that is not Material Real Property and (f) security interests and mortgage liens shall not be required with respect to any assets or properties to the extent that such security interests or mortgage liens would result in a material adverse tax consequence to the Parent or its Restricted Subsidiaries, as reasonably determined by the Parent and ~~Mortgages~~ notified in writing to the Administrative Agent. All security interests and mortgage liens shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to ~~take pursuant to clause (e) below~~promptly take) valid and enforceable perfected security interests and ~~Mortgages~~ mortgage liens (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the ~~terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu~~ ABL/Term Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all Taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding any other provision in this Agreement or any other Credit Document, no ~~Excluded Subsidiary~~ FSHCO or CFC shall be required to pledge any of its assets to secure any obligations of ~~Borrower~~ the Borrowers under the Credit Documents or ~~guarantee the obligations of Borrower under the Credit Documents~~* CONFIDENTIAL PORTIONS HAVE BEEN OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED MATERIAL IS MARKED WITH "[REDACTED]". (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Abl Credit Agreement (Performance Sports Group Ltd.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and Borrower~~ US Company will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors ~~security interests~~ Liens, hypothecs and Mortgages in such assets and ~~properties (in the case~~ owned Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ US Company and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such ~~security interests~~ Liens, hypothecs and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Administrative Agent and Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected ~~security interests~~ Liens, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto (provided that Administrative Agent’s Liens on the LKE Joint Accounts need not be perfected). The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. ~~Notwithstanding~~ In connection with the delivery of any ~~other provision in this Agreement or any other Credit Document~~Mortgage, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower US Company will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party ~~together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case~~to, to the extent ~~required pursuant~~ reasonably requested from time to time by the Administrative Agent, Collateral Agent or the Required Lenders, deliver (i) a Mortgage Policy issued by a title insurer reasonably satisfactory to the ~~Security Agreement)~~Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent and Collateral Agent insuring that the Mortgage is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances, (ii) ~~cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute~~ a ~~joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document~~then current A.L.T.A. survey, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed certified to the Administrative Agent and the ~~other Lenders~~Collateral Agent by a licensed surveyor sufficient to allow the issuer of the Mortgage Policy to issue such Mortgage Policy without a survey exception, ~~of counsel~~ (iii) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Administrative Agent as and Collateral Agent, in form and substance satisfactory to ~~such matters set forth in this Section 9.12(b) as~~ the Administrative Agent ~~may~~ and Collateral Agent and (iv) a certificate in a form reasonably ~~request~~acceptable to the Administrative Agent indicating that the property is not in a flood zone, or if the property is in a flood zone, evidence that appropriate insurance reasonably acceptable to the Administrative Agent has been obtained. Notwithstanding the foregoing, this Section 9.13(a) shall not apply to (and US Company and the other Credit Parties shall not be required to grant a Mortgage in) any Real Property the Fair Market Value of which is less than $7,500,000 or the Equivalent Amount thereof. (cb) ~~Holdings and Borrower~~ US Company will, and will cause each of the other Credit Parties to, at the expense of ~~Borrower~~US Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Administrative Agent and the Collateral Agent may reasonably require. Furthermore, US Company will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Administrative Agent and the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent or and the Collateral Agent ~~reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 9.13 has been complied with. (dc) If the Administrative Agent, the Collateral Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of US Company and the other Credit Parties constituting Collateral, ~~Borrower~~ US Company will, at its own expense, provide to the Administrative Agent and the Collateral Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) ~~Borrower~~ US Company agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 9.13 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will ~~Borrower~~ US Company or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section. (e) Notwithstanding anything contained in this Section ~~9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage~~ 9.13 or this Agreement to the ~~Collateral Agent for the benefit of the Secured Creditors as required herein and~~ contrary, in no event shall ~~not grant such Mortgage until~~ (i) the ~~Collateral Agent has provided written notice to Borrower~~ assets of any of the ~~completion of all required flood insurance due diligence and flood insurance compliance which notice states that~~ UK Company, the ~~Collateral Agent is satisfied with~~ Canadian Company or any other Foreign Subsidiary be pledged to secure the ~~results thereof and~~ US Obligations or (ii) more than 65% of the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results voting securities of any ~~such due diligence or compliance (and~~ first-tier Foreign Subsidiary held by the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (US Company or any ~~increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject~~ Domestic Subsidiary be pledged to ~~a Mortgage) shall be subject to (and conditioned upon)~~ secure the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyUS Obligations.

Appears in 1 contract

Samples: Abl Credit Agreement (Mobile Mini Inc)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Subject to clause (e) of this Section 9.12, Parent and ~~Borrower~~ the Company will, and will cause each of the ~~Subsidiary Guarantors~~ Company’s Subsidiaries to, grant to the Collateral Agent for the benefit of the Secured ~~Creditors~~ Creditors, at the expense of the Borrowers, security interests and Mortgages (not to exceed 110% of the Fair Market Value of the Real Property being mortgaged) in ~~such~~ the assets and ~~properties (in~~ Real Property of Parent, the ~~case of Real Property, limited to Material Real Property) of Holdings, Borrower~~ Company and ~~the~~ such other Subsidiary ~~Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents, as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent (or otherwise required at such time pursuant to the Intercreditor Agreements) (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable ~~perfected security interests and Mortgages~~ (~~except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles~~ i) First Priority (~~regardless of whether enforcement is sought in equity or at law)),~~ subject to the terms of the Intercreditor Agreements) perfected security interests, hypothecations and Mortgages with respect to ABL ~~Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ Facility Priority Collateral and ~~any Additional Pari Passu Intercreditor Agreement, superior to and prior~~ (ii) Second Priority (subject to the ~~rights~~ terms of ~~all third Persons other than holders of Permitted Liens~~ the Intercreditor Agreements) perfected security interests, hypothecations and Mortgages with ~~priority by virtue of applicable law and subject~~ respect to ~~no other Liens except for Permitted Liens~~Term Loan Priority Collateral. The Additional Security Documents or instruments related thereto ~~shall~~ shall, at the expense of the Borrowers, be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding the foregoing, this Section 9.12(a) shall not apply to (and Parent, the Company and its Subsidiaries shall not be required to grant a security interest or Mortgage in) (A) any owned Real Property the Fair Market Value of which is less than $2,000,000 or any Leasehold unless, in either case, a Mortgage is granted (or required to be granted) in respect of such Real Property pursuant to the terms of the Priming Term Loan Documents or the documents governing any secured Indebtedness incurred or issued in reliance on Section 10.04(r), (B) any motor vehicles, (C) [reserved] or (D) any other ~~provision in this~~ assets expressly excluded from Security Agreement Collateral or any other ~~Credit Document, no Excluded Subsidiary shall be required to pledge~~ Collateral under any of ~~its assets to secure~~ the Security Documents, including any ~~obligations of Borrower under~~ Excluded Assets (as defined in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Security Agreement). (b) Subject to clause (e) of this Section 9.12, Parent and the Company will, and will cause each of the Company’s Subsidiaries to, at the expense of Parent and the Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such schedules, confirmatory assignments, financing statements (including, but not limited to, UCC fixture filings to be filed along with the applicable Mortgages), transfer endorsements, powers of attorney, certificates, collateral access agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require, subject to the terms of the ABL Intercreditor Agreement; provided, that in the case of any such agreements, assurances or instruments that require the consent of, or any action by, a third party, Parent, the ~~Pari Passu Intercreditor Agreement~~Company and its Subsidiaries shall only be required to use commercially reasonable efforts to obtain the same; provided, further, that in no event shall any ~~Additional Junior Lien Intercreditor Agreement and~~ bailee agreements, landlord lien waivers, collateral access agreements or similar agreements, or the execution of any ~~Additional Pari Passu Intercreditor Agreement,~~ local law pledge and/or security agreements or taking other actions with respect ~~to any Person that is or becomes a Restricted Subsidiary (or ceases to~~ thereto be ~~an Excluded Subsidiary) after~~ required. Furthermore, in the ~~Closing Date~~case of additional Real Property Collateral, ~~Holdings~~ Parent and ~~Borrower~~ the Company will, and will cause each ~~applicable Restricted Subsidiary~~ of the Company’s Subsidiaries to, ~~(i)~~ deliver to the Collateral Agent such opinions of counsel in each jurisdiction in which the ~~certificates~~mortgaged Real Property is located, ~~if any~~surveys or survey updates or ExpressMaps, ~~representing all~~ as required to the extent necessary to allow the issuer of the Mortgage Policy to issue such policy without exception. Mortgage Policies and other related documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Collateral Agent to assure itself that this Section 9.12 has been complied with. (c) If the Administrative Agent reasonably determines that the Lenders are required by law or regulation to have appraisals prepared in respect of any Real Property of Parent, the Company and its Subsidiaries constituting Collateral, subject to clause (e) of this Section 9.12, Parent, the Company and its Subsidiaries will, at their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (d) Subject to clause (e) of this Section 9.12, the Credit Parties shall deliver to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Mortgaged Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrowers or the relevant Credit Party, as applicable, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area). (e) Parent, the Company and its Subsidiaries agree that each action required by clauses (a) through (d), or by clauses (f) and (g) of this Section 9.12 shall be completed as soon as reasonably practicable, but in no event later than 60 days (or 30 days in the case of clauses (f) and (g) of this Section 9.12) after such action is requested to be taken by the Administrative Agent (or such ~~lesser amount~~ longer period of time as ~~is required)~~ may be agreed to by the Administrative Agent in its discretion); provided, that in no event will Parent, the Company or any of ~~the Equity Interests of such Restricted Subsidiary~~its Subsidiaries be required to take any action, ~~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, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each casethan using its commercially reasonable efforts, to obtain consents from, or actions by, third parties with respect to its compliance with this Section 9.12. (f) Parent and the ~~extent required pursuant to the Security Agreement), (ii)~~ Company will cause ~~such new Restricted~~ each Person that becomes a Subsidiary (other than an Excluded Subsidiary) of the Company after the Effective Date to (i) promptly pledge the capital stock or other Equity Interests owned by it pursuant to, and to the extent required by, the Security Agreement and deliver to the Collateral Agent (or to its agent, bailee or designee, including the Collateral Agent under the Priming Term Loan Agreement in accordance with the terms of the Intercreditor Agreement) the certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, (ii) (A) execute a ~~joinder agreement~~ Joinder Agreement or such comparable documentation to ~~the Guaranty Agreement~~ become a Borrower or Guarantor hereunder and a joinder agreement to ~~each~~ the applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, ~~and~~ (B) take all actions reasonably necessary or advisable in the reasonable opinion of of, and requested by, the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (C) become a party to the ABL Intercreditor Agreement, the Subordination Agreement or any other intercreditor or subordination arrangement entered into pursuant to the terms hereof (if required thereby) and, if applicable, execute Control Agreements, a Patent Security Agreement, a Trademark Security Agreement and a Copyright Security Agreement, (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent ~~deemed~~ reasonably requested by the Administrative Agent or the ~~Collateral Agent reasonably necessary for the continued validity~~Required Lenders, ~~perfection~~ take all actions required pursuant to this Section 9.12 and ~~priority~~ (~~subject~~ iv) at least five days prior to the ~~terms~~ effective date of any new Subsidiary of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject Company becoming a Borrower or Guarantor hereunder pursuant to ~~no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document.~~ clause (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expenseii), provide to ~~the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery~~ all Lenders all documentation and ~~Enforcement Act of 1989, as amended. (e) Borrower agrees that each action~~ other information required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agentbank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (Patriot Act and the ~~date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing)~~information described in Section 13.18. Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property andIn addition, to the extent ~~any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery~~ reasonably requested by the Collateral ~~Agent~~ Agent, each new Subsidiary of the Company that is required to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in execute any Credit Document shall execute and deliver, or cause to ~~the contrary~~be executed and delivered, ~~if the Collateral Agent or any Lender is not satisfied with the results~~ all other relevant documentation (including opinions of ~~any flood insurance due diligence or flood insurance compliance or any~~ counsel) of the ~~deliveries referred~~ type described in Section 6 as such new Subsidiary of the Company would have had to deliver if such new Subsidiary were a Credit Party on the Effective Date. Notwithstanding the foregoing in ~~the immediately preceding sentence~~this clause (f), ~~and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties~~ (a) no Foreign Subsidiary shall ~~not~~ be required to ~~grant a Mortgage on such Material Real Property in favor~~ enter into security documentation governed by the laws of the local jurisdiction of organization of such ~~Person or otherwise comply with~~ Foreign Subsidiary and (b) no Credit Party that owns capital stock any Foreign Subsidiary shall be required to pledge the ~~provisions~~ capital stock of such Foreign Subsidiary pursuant to security documentation governed by the laws of the local jurisdiction of organization of such Foreign Subsidiary; provided, that such Foreign Subsidiary shall execute the Guaranty and Security Agreement and such Credit ~~Documents relating~~ Party shall pledge such capital stock pursuant to ~~Mortgages with respect~~ the Security Agreement. (g) In addition, promptly after any Subsidiary of Company ceases to constitute an “Excluded Subsidiary”, Company shall cause such ~~Material Real Property.~~Subsidiary to take all actions required by this

Appears in 1 contract

Samples: Abl Credit Agreement (J.Jill, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such ~~assets~~ Collateral and ~~properties (in~~ Real Property Collateral of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date~~ original Security Documents (other than ~~assets constituting~~ Excluded ~~Collateral~~Assets) ~~and~~ as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively, as ~~may be~~ amended, ~~amended and~~ restated, ~~modified, supplemented, extended~~ supplemented or ~~renewed~~ otherwise modified from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (the Borrower and, subject to exceptions as are reasonably acceptable to the ~~Collateral~~ Administrative Agent) , shall ~~constitute~~constitute valid, ~~upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and~~ enforceable ~~perfected security interests and Mortgages~~ (except to the extent that the enforceability thereof may be limited by applicable ~~Debtor Relief Laws~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)), ) and perfected security interests (if and to the extent the assets subject to the ~~terms of~~ applicable Additional Security Document can be perfected by the ~~ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any~~ actions required by such Additional ~~Junior Lien Intercreditor Agreement~~ Security Document) and ~~any Additional Pari Passu Intercreditor Agreement,~~ Mortgages superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, ~~perfect~~perfect (if and to the extent such security interests can be perfected by the filings or other actions required under the Additional Security Documents), preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 8.11(a) shall not apply to (and the Borrower and its Restricted Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any Leaseholds (regardless of ~~its assets~~ fair market value) or any owned Real Property the fair market value of which is less than $1,000,000 (as reasonably determined by Borrower or such Restricted Subsidiary and reasonably acceptable to ~~secure any obligations~~ the Administrative Agent); provided however that in no event shall the aggregate fair market value (as reasonably determined by Borrower) of ~~Borrower under~~ all owned Real Property not required to be subject to a Mortgage by operation of this sentence exceed $10,000,000 in the ~~Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~aggregate. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and The Borrower will, and will cause each of the other Credit Parties to, at the reasonable expense of the Borrower, make, execute, endorse, acknowledge, ~~file~~ authorize and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~conveyances, ~~upon the reasonable request~~ financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, bailee agreements, control agreements and other documents, assurances, opinions of counsel or instruments and take such further similar steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents to as the ~~extent deemed~~ Collateral Agent may reasonably require. Each Credit Party acknowledges that certain transactions contemplated by this Agreement and the other Credit Documents, and certain actions which may be taken by the Administrative Agent, the Collateral Agent or the Lenders in the exercise of their rights and remedies under this Agreement or any other Credit Document, may require the consent of the FCC. If the Administrative Agent reasonably determines that the consent of the FCC is required in connection with the execution, delivery or performance of any of the aforesaid documents or any documents delivered to the Administrative Agent, the Collateral Agent ~~reasonably necessary for~~ or the ~~continued validity~~Lenders in connection therewith or as a result of any action which may be taken or be proposed to be taken pursuant thereto, ~~perfection~~ then each Credit Party, at its sole reasonable cost and ~~priority (subject~~ expense, shall use its commercially reasonable efforts to secure such prior consent and to cooperate with the ~~terms of the ABL Intercreditor Agreement~~Administrative Agent, the ~~Pari Passu Intercreditor Agreement~~Collateral Agent and the Lenders in any such action taken or proposed to be taken by the Administrative Agent, ~~any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on~~ the Collateral ~~covered thereby subject to no other Liens except for Permitted Liens~~ Agent or ~~as otherwise permitted by the applicable Security Document~~any Lender. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any Mortgaged ~~Property~~Property of the Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (ed) The Borrower agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.11 shall be completed ~~in no event later than 90~~ within sixty (60) days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or as such ~~longer period as~~ time may be extended by the Administrative Agent or ~~Collateral Agent shall otherwise agree~~the Required Lenders in its or their discretion); provided, ~~including with respect to any Real Property acquired after the Closing Date~~ that ~~Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that,~~ in no event ~~will~~ shall the Borrower or any of its Restricted Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.11. (e) Promptly after any Domestic Restricted Subsidiary of the Borrower ceases to constitute an Immaterial Subsidiary or a “U.S Foreign Holding Company” in accordance with the applicable definitions thereof, ~~further, that,~~ the Borrower shall ~~give~~ cause such Domestic Restricted Subsidiary to take all actions required as if such Domestic Restricted Subsidiary were then established, created or acquired. (f) Each new Wholly-Owned Domestic Restricted Subsidiary that is required to execute any Credit Document shall promptly, upon the ~~Collateral Agent 45 days~~ reasonable request of the Administrative Agent, execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of counsel) of the type described in Sections 5.02, 5.03, 5.04, 5.08, 5.09 and 5.13 as such new Restricted Subsidiary would have had to deliver if such new Restricted Subsidiary were a Credit Party on the Effective Date. (g) In the event (A) new Unrestricted Subsidiaries are established or created, or the Borrower or any of its Wholly-Owned Restricted Subsidiaries acquires Equity Interests in an Unrestricted Subsidiary (i) at least 5 days’ prior written notice ~~prior~~ thereof shall be given to ~~granting~~ the Administrative Agent (or such shorter period of time as is acceptable to the Administrative Agent in any ~~Mortgage~~ given case), (ii) the Equity Interests (other than any Excluded Equity Interests) of such new Unrestricted Subsidiary held by any Credit Party shall be promptly pledged pursuant to, and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests, together with stock or other appropriate powers duly executed in blank, shall be delivered to the Collateral Agent ~~for the benefit of the Secured Creditors as required herein~~ as, and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent ~~necessary~~ required by, the Pledge Agreement, (iii) all Investments by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary shall be permitted pursuant to ~~comply with the foregoing). Each~~ Section 9.05 and (iv) all requirements of the ~~parties hereto acknowledges~~ definition of Unrestricted Subsidiary and ~~agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties~~ Section 8.14 shall have been satisfied, and (~~or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon~~B) the ~~prior delivery to the Collateral Agent of “life~~Borrower and its Wholly-~~of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property~~ Owned Restricted Subsidiaries establish, create and, to the extent ~~any improved Mortgaged Property is located in an area determined~~ permitted by ~~the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area~~this Agreement, acquire Wholly-Owned Restricted Subsidiaries (i) ~~delivery by~~ at least 5 days’ prior written notice thereof shall be given to the Administrative Agent (or such shorter period of time as is acceptable to the Administrative Agent in any given case), (ii) the Equity Interests (other than any Excluded Equity Interests) of such new Restricted Subsidiary shall be promptly pledged pursuant to, and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests (other than any Excluded Equity Interests), together with stock or other appropriate powers duly executed in blank, shall be delivered to the Collateral Agent as, and to ~~Borrower~~ the extent required by, the Pledge Agreement, (iii) each such new Wholly-Owned Domestic Restricted Subsidiary (other than any Immaterial Subsidiary) shall execute a counterpart of ~~a notice of special flood hazard area status~~ the Subsidiaries Guaranty, the Security Agreement and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower the Pledge Agreement and (iiiv) ~~evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in~~ each such new Wholly-Owned Domestic Restricted Subsidiary (other than any ~~Credit Document~~ Immaterial Subsidiary), to the ~~contrary, if~~ extent requested by the ~~Collateral~~ Administrative Agent or ~~any Lender is not satisfied with~~ the ~~results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred~~ Required Lenders, shall take all actions required pursuant to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertythis Section 8.11.

Appears in 1 contract

Samples: Credit Agreement (Radio One, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings~~ Each Borrower and ~~Borrower will~~each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, ~~and~~ or a Canadian Subsidiary or a Dutch Subsidiary, but excluding any Excluded Subsidiary, will ~~cause each of the Subsidiary Guarantors to,~~ promptly grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and properties (in the case of Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors as are acquired after the Closing Date (other than assets constituting Excluded Collateral) and as may be reasonably requested from time to time by the Collateral Agent (collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and (subject to exceptions as are reasonably acceptable to the Collateral Agent) shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below) valid and enforceable perfected security interests in such Collateral of such Borrower and ~~Mortgages (except to the extent that the enforceability thereof may be limited~~ such Restricted Subsidiaries as are not covered by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons other than holders of Permitted Liens with priority by virtue of applicable law and subject to no other Liens except for Permitted Liens. The Additional Security Documents ~~or instruments related thereto shall be duly recorded or filed~~ then in ~~such manner and~~ effect, in ~~such places as are required by law~~ order to ~~establish, perfect, preserve and protect (subject to exceptions as are reasonably acceptable to~~ comply with the Collateral Agent) the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents. Notwithstanding any other provision in this Agreement or any other Credit Document, no Excluded Subsidiary shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documentsand Guarantee Requirement. (b) Subject to the ~~terms~~ provisions of the ~~ABL Intercreditor Agreement,~~ Collateral and Guarantee Requirement and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ other limitations set forth in this Agreement ~~and any Additional Pari Passu Intercreditor Agreement~~or the applicable Security Documents, with respect to any Person that is or becomes after the Second Restatement Effective Date a Wholly-Owned Restricted Subsidiary (that is either a Domestic Subsidiary, or a Canadian Subsidiary, or a Dutch Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to be constitute an Excluded Subsidiary~~) after~~ , but excluding any Excluded Subsidiary, the ~~Closing Date~~applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, ~~Holdings and Borrower will~~as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and ~~will cause each applicable Restricted Subsidiary to~~pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new ~~Restricted~~ Subsidiary ~~(other than an Excluded Subsidiary) to~~ (A) to execute a joinder agreement to this Agreement, in the ~~Guaranty Agreement~~ form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security ~~Document~~Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all ~~actions~~ actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent ~~or the Collateral Agent~~ to cause the Lien created by the applicable Security ~~Document~~ Agreement to be duly perfected to the extent required by ~~such agreement~~ the Collateral and Guarantee Requirement in accordance with all applicable ~~Requirements of Law~~law, including the filing of financing statements ~~in such jurisdictions~~ as ~~may be reasonably requested~~ required by the ~~Administrative Agent or the~~ Collateral ~~Agent~~ and Guarantee Requirement; and (~~iii~~ii) at the reasonable request of the Administrative Agent, deliver ~~or cause to be delivered~~ to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agents, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section ~~9.12(b~~8.10(b) as (provided that the Administrative Agent ~~may~~ agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the ClosingSecond Restatement Effective Date with respect to the Security Documents delivered on the Original Closing Date shall be reasonably ~~request~~acceptable to the Administrative Agent). (c) ~~Holdings~~ Subject to the limitation set forth in the Collateral and ~~Borrower will~~Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, ~~and will cause~~ each of the ~~other~~ Credit Parties towill, at the expense of ~~Borrower~~the Company, make, execute, endorse, acknowledge, file and/or deliver to the ~~Collateral~~ Administrative Agent, promptly, upon the reasonable request of the Administrative ~~Agent or the Collateral~~ Agent, at ~~Borrower’s~~ Company's expense, any document or instrument supplemental to or confirmatory of the Security Documents to required by the ~~extent~~ Collateral and Guarantee Requirement that are deemed by the Administrative ~~Agent or the Collateral~~ Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada and with respect to the Dutch Credit Parties, under applicable law in the Netherlands or England) and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements Each of the ~~Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower~~ Credit Parties agrees that each action required by clauses (a) through (dc) of this Section ~~9.12~~ 8.10 shall be completed ~~in no event later than 90 days~~ as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent ~~or Collateral Agent~~ shall otherwise reasonably agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term "Eligible Accounts" solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, or Canada or the Netherlands) for inclusion in the applicable Borrowing Base or (y) any requirement to take any Additional Inventory Security Action set forth in the definition of the term "Eligible Inventory" solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Borrower and located in the United Kingdom, France or Germany for inclusion in the Dutch Borrowing Base, it being understood that in no event will ~~Borrower or any of its Restricted Subsidiaries~~ the Credit Parties be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~8.10. (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, ~~further~~to request Account Debtor notifications in the relevant Account Debtor Approved Countries, ~~that, Borrower~~ the Relevant Borrowers shall ~~give~~ provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent's security interest in the Accounts owing by such Account Debtors. (f) Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Second Restatement Effective Date (or, in each such case, with respect to any Person that is or becomes after the Second Restatement Effective Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent ~~45 days written notice prior to granting any Mortgage~~ may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors ~~as required herein~~ security interests in and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Second Restatement Effective Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an "Additional Mortgage"), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of ~~such Person or otherwise comply with~~ the ~~provisions~~ Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents ~~relating to Mortgages~~ in connection with ~~respect to~~ such ~~Material Real Property~~additional Mortgaged Properties.

Appears in 1 contract

Samples: Restatement Agreement (SunOpta Inc.)

Additional Security; Further Assurances; etc. (ai) ~~Holdings and Borrower~~ Each of the Borrowers will, and will cause each of the US Subsidiary Guarantors and Related Foreign Company Guarantors to, grant to the Collateral ~~Agent~~ Agent, for the benefit of the Secured Creditors described in the Security Documents to which such Credit Party is a party, security interests and Mortgages in such assets and properties ~~(in the case~~ of ~~Real Property, limited to Material Real Property) of Holdings, Borrower and the Subsidiary Guarantors~~ such Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral) and~~ original Security Documents to which such Credit Party is a party, or as may be ~~reasonably~~ requested from time to time by the ~~Collateral Agent~~ Required Lenders (~~collectively, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time,~~ the “"Additional Security Documents”"). ~~All such~~ Such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and shall (~~subject~~ except as otherwise consented to ~~exceptions as are reasonably acceptable to~~ by the ~~Collateral Agent~~Required Lenders) ~~shall constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other ~~Liens~~ Liens, except ~~for~~ Permitted Liens. The Additional Security Documents or other instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to~~ the ~~Collateral Agent) the Liens~~ Liens, in favor of the Collateral Agent for the benefit of the respective Secured Creditors, required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding the foregoing, (x) this Section 7.09(a) shall not apply to any ~~other provision~~ operating lease which by its terms prevents the respective Credit Party from granting a security interest therein, provided that such Credit Party shall use reasonable good faith efforts at the time it enters into any such lease, to have any such restrictive terms eliminated and (y) unless otherwise permitted (or not restricted) by the applicable CanCo Restrictions then in ~~this Agreement or~~ effect, any ~~other Credit Document, no Excluded Subsidiary~~ Additional Security Documents entered into by CanCo shall ~~be required to pledge any of its assets to~~ only secure ~~any~~ CanCo's direct obligations ~~of Borrower~~ under the Credit Documents ~~or guarantee the obligations of Borrower under the Credit Documents. (b) Subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, promptly, upon the reasonable request of the Administrative Agent or the Collateral Agent, at Borrower’s expense, any document or instrument supplemental to or confirmatory of the Security Documents to the extent deemed by the Administrative Agent or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document. (d) If the Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed in no event later than 90 days after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertyparty.

Appears in 1 contract

Samples: Credit Agreement (Silgan Holdings Inc)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and Real Property of Holdings and such other Credit Party (including, without limitation, Oil and Gas Properties and other properties ~~(in~~ of Holdings and such other Credit Party acquired subsequent to the ~~case of Real Property, limited to Material Real Property~~Funding Date) ~~of Holdings, Borrower and the Subsidiary Guarantors~~ as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. ~~Notwithstanding any other provision~~ It is understood and agreed that, notwithstanding anything to the contrary above in this ~~Agreement or any other Credit Document~~clause (a), ~~no Excluded Subsidiary shall be required to pledge~~ neither Holdings nor any of its ~~assets~~ Subsidiaries will be required pursuant to ~~secure~~ this clause (a) to (i) grant a security interest in or mortgage on any ~~obligations~~ Oil and Gas Property that would not otherwise be required under Section 7.12(g), (ii) grant a security interest in or mortgage on any leased Real Property that is not an Oil and Gas Property or (iii) grant a security interest in or mortgage on any owned Real Property that is not an Oil and Gas Property unless (x) any such item of ~~Borrower under~~ Real Property individually has a Fair Market Value of at least $2,500,000 or (y) the ~~Credit Documents or guarantee~~ aggregate Fair Market Value of such Real Property that would otherwise be excluded from the ~~obligations~~ requirements of ~~Borrower under the Credit Documents~~this clause (a) would exceed $10,000,000. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord lien waivers, collateral access agreements, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 7.12 has been complied with. (c) Holdings will cause each Non-Guarantor Subsidiary that ceases to be an Immaterial Subsidiary to execute and deliver all Security Documents (in such form as may be appropriate, as determined by the Administrative ~~Agent or the Collateral Agent reasonably necessary for the continued validity~~Agent, ~~perfection and priority (subject to the terms~~ in light of the ~~ABL Intercreditor Agreement,~~ jurisdiction of organization of such Subsidiary and the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement~~ location of assets owned by such Subsidiary) and ~~any Additional Pari Passu Intercreditor Agreement)~~ all other relevant documentation (including opinions of counsel as of the ~~Liens~~ type described in Section 5) as such Subsidiary would have had to deliver if such Subsidiary were a Credit Party on the ~~Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~Funding Date. (d) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance satisfactory to the Administrative Agent. (e) Each of Holdings and the Borrower ~~agrees~~ agree that each action required by clauses (a) through (d) of this Section ~~9.12~~ 7.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may beLenders; provided that, in no event will ~~Borrower~~ Holdings or any of its ~~Restricted~~ Subsidiaries be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided~~7.12. (f) Within 90 days after Funding Date, ~~further~~furnish the Administrative Agent with title information reasonably satisfactory to the Administrative Agent showing good and defensible (from the perspective of a reasonably prudent investor in the Oil and Gas Business) title, ~~that~~subject only to Permitted Liens, ~~Borrower shall give~~ to U.S. Oil and Gas Properties representing in the ~~Collateral Agent 45~~ aggregate not less than 85% of 2P Reserve Value of Holdings’ and its Subsidiaries’ U.S. Oil and Gas Properties as of December 31, 2009, and within 60 days ~~written notice~~ after the making of a request therefor by the Administrative Agent, furnish such title information or Oil and Gas Contracts as may be necessary to achieve title information coverage with respect to Oil and Gas Properties representing in the aggregate not less than 85% of 2P Reserve Value as set forth in the Reserve Report most recently delivered pursuant to Section 7.01(d) prior to ~~granting any Mortgage~~ the making of such request. (g) Regularly monitor engineering data covering all Oil and Gas Properties of Holdings and each of its Subsidiaries and mortgage or cause to be mortgaged such of the same to the Collateral Agent ~~for the benefit~~ on behalf of the Secured Creditors ~~as required herein and shall not grant such~~ pursuant to a Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to ~~comply with the foregoing). Each of the parties hereto acknowledges and agrees~~ ensure that the ~~grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments~~ Obligations shall at ~~a time when any Mortgaged Property is subject to a Mortgage) shall~~ all times be ~~subject to (~~secured by first priority perfected Liens and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located security interests in ~~an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area,~~ (i) ~~delivery by the Collateral Agent~~ each Oil and Gas Property having an individual value of $5,000,000 or more (on a contribution to ~~Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2~~2P Reserve Value basis) ~~Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower~~ and (ii) ~~evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything~~ Oil and Gas Properties in ~~any Credit Document to~~ the ~~contrary, if the Collateral Agent or any Lender is~~ aggregate representing not ~~satisfied with the results of any flood insurance due diligence or flood insurance compliance or any~~ less than 85% of the ~~deliveries referred~~ aggregate 2P Reserve Value attributable to all Oil and Gas Properties, in each case based on the 2P Reserve Value reflected in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Propertymost recent Reserve Report.

Appears in 1 contract

Samples: Credit Agreement (Endeavour International Corp)

Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will, and the Borrower will cause each of the ~~Subsidiary Guarantors~~ other Credit Parties to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests ~~and Mortgages~~ in such assets and properties (~~in the case of Real Property, limited to Material Real Property~~leased or owned) of ~~Holdings,~~ the Borrower and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”); provided, however, until such time as the Existing Holdings Notes have been repaid in full (or the limitation on Liens covenant under the Existing Holdings Note Indenture has been eliminated), Holdings only shall be required to pledge the Equity Interests of its Subsidiaries pursuant to this Section 8.12. All such security interests ~~and Mortgages~~ shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the ~~Collateral~~ Administrative Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and subject to no other Liens except for Permitted Liens. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be ~~required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~paid in full. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and the Borrower will, and ~~will cause each applicable Restricted Subsidiary to, (i) deliver to~~ the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower ~~will, and~~ will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such vouchers, ~~promptly~~invoices, ~~upon the reasonable request~~ schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require pursuant to this Section 8.12. Additionally, upon the request of the Collateral Agent or the Required Lenders, Holdings and the Borrower will take, or the Borrower will cause to be taken, such action as may be requested in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Collateral located outside the U.S. owned by Holdings or the other Credit Parties, in each case to the extent ~~deemed by~~ such actions are permitted to be taken under the ~~Administrative Agent or~~ laws of the applicable jurisdictions. Furthermore, Holdings will cause to be delivered to the Collateral Agent such opinions of counsel, title insurance, flood certifications and other related documents as may be reasonably ~~necessary for~~ requested by the ~~continued validity~~Collateral Agent to assure itself that this Section 8.12 has been complied with. (c) The Borrower agrees to cause each other Credit Party established or created in accordance with Section 9.12 or acquired pursuant to Section 8.16, ~~perfection~~ within 10 Business Days after any such establishment, creation or acquisition, to execute and ~~priority (subject~~ deliver a counterpart of a Joinder Agreement pursuant to which such Credit Party shall become a party to the ~~terms of the ABL Intercreditor Agreement~~Subsidiaries Guaranty, the ~~Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor~~ Borrower/Sub Pledge Agreement and ~~any Additional Pari Passu Intercreditor~~ the Security Agreement~~) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document~~. (d) If Except as otherwise provided in clause (c) of this Section 8.12, Holdings and the ~~Administrative Agent or the Collateral Agent reasonably determines that it or the Lenders are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property,~~ Borrower will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended. (e) Borrower agrees agree that each action required above by ~~clauses (a) through (d) of~~ this Section ~~9.12~~ 8.12 shall be completed as soon as reasonably practicable, but in no event later than 90 30 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders (or such longer period as the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyLenders.

Appears in 1 contract

Samples: Credit Agreement (Town Sports International Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Urban One, Inc.)

Additional Security; Further Assurances; etc. (a) ~~Holdings and~~ The Borrower will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in~~ fee-owned Real Property of the ~~case of Real Property, limited to Material Real Property) of Holdings,~~ Borrower and the ~~Subsidiary Guarantors~~ other Credit Parties as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent ~~and (subject to exceptions as are reasonably acceptable~~ and, following delivery of certificated Pledge Agreement Collateral to the Collateral Agent and the filing and/or recordation of the necessary UCC-1 financing statements, documents with the United States Patent and Trademark Office and the United States Copyright Office (with respect to intellectual property rights, to the extent that such perfection and priority may be achieved by filings made in the United States Patent and Trademark Office and the United States Copyright Office or otherwise deemed advisable by the Administrative Agent) ), and/or mortgages in the appropriate jurisdiction, shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security ~~interests~~ interests, hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security ~~Documents. Notwithstanding any~~ Documents and all taxes, fees and other ~~provision~~ charges payable in ~~this Agreement or any other Credit Document, no Excluded Subsidiary~~ connection therewith shall be required to pledge any of its assets to secure any obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and paid in full. The Borrower will, and will cause each ~~applicable Restricted Subsidiary~~ other Credit Party to, ensure that (i) the assets serving as security for the Senior Secured Notes Documents and/or the Second Lien Notes Documents, as the case may be, are no more expansive than the assets constituting Collateral pursuant to the Security Documents and shall grant to the Collateral Agent for the benefit of the Secured Creditors security interests and Mortgages to ensure compliance with the preceding, (ii) the Liens created pursuant to the Senior Secured Notes Documents are at all times subject to the Senior Secured Notes Intercreditor Agreement, (iii) the Liens created pursuant to the Second Lien Notes Documents are at all times subject to the Second Lien Notes Intercreditor Agreement and (iv) all recordations and filings made pursuant to this Section 9.12 or any of the Security Documents that are made substantially concurrently with any filing in respect of Second Lien Notes Documents are made prior to any equivalent recordations or filings pursuant to the Second Lien Notes Documents. Notwithstanding anything in this Agreement or in the other Credit Documents to the contrary, (i) ~~deliver~~ neither the Borrower nor any Subsidiary Guarantor shall be required to grant a Mortgage on (A) any fee-owned Real Property, the ~~Collateral Agent~~ Fair Market Value of which is less than $3,000,000 or (B) the ~~certificates~~Designated XETA Real Property, ~~if any~~in either case, ~~representing all~~ unless a Mortgage on such Real Property is granted (or ~~such lesser amount as is required~~required to be granted) for the benefit of the holders (or any trustee or collateral agent) of the ~~Equity Interests of such Restricted Subsidiary, together with undated stock powers~~ Senior Secured Notes or ~~other appropriate instruments of transfer executed~~ Second Lien Notes and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) ~~cause such new Restricted Subsidiary (other than an Excluded Subsidiary~~Liens created pursuant to Section 10.01(xxviii) ~~to (A) execute a joinder agreement to~~ may be created and incurred and remain outstanding so long as the ~~Guaranty Agreement~~ Senior Secured Notes and ~~a joinder agreement to each applicable Security Document, substantially in~~ the ~~form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the~~ Second Lien ~~created by the applicable Security Document to be duly perfected to the extent required by such agreement~~ Notes are issued in accordance with ~~all applicable Requirements~~ this Agreement and any representation, warranty, or covenant that could be violated or Default or Event of ~~Law, including the filing of financing statements in~~ Default that could occur as a result thereof shall be deemed to have been modified to permit such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably requestLiens. (cb) ~~Holdings and~~ The Borrower will, and will cause each of the other Credit Parties to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon the reasonable request~~ conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys on Mortgaged Properties, reports, landlord waivers, control agreements, flood certificates and flood insurance, if applicable, and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require (including, without limitation, amending and/or causing amendments to the ~~extent deemed~~ Credit Documents relating to Collateral matters, as the Administrative Agent shall reasonably request). Furthermore, the Borrower will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance on Mortgaged Properties and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent, the Collateral Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of the Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the ~~Administrative~~ Collateral Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Collateral Agent. (d) At the request of the Collateral Agent or the Required Lenders, the Borrower will, or will cause the relevant Subsidiary Guarantor of the Borrower to, deliver to the Collateral Agent (i) collateral assignments of all material third party agreements relating to each System, consented to by the applicable third parties thereto, (ii) evidence that all necessary Governmental Approvals for each System have been obtained and (iii) with respect to each real estate and material equipment lease and each mortgage relating to each System (x) the right from the applicable lessors and mortgagees to cure all payment defaults under such leases and mortgages by making payments directly to the applicable lessors and mortgagees and (y) in the case of a leased facility, landlord waivers and consents or such other documentation as the Collateral Agent may require. (e) The Borrower agrees that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as promptly as practicable, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative Agent, the Collateral Agent or or, as applicable, the Required Lenders (or as such ~~longer period as~~ date may be extended by the Administrative Agent ~~or Collateral Agent shall otherwise agree~~in its sole discretion), ~~including~~ provided that, except with respect to ~~any Real Property acquired after~~ the ~~Closing Date that Borrower has notified the Collateral Agent that it intends to dispose~~ actions set forth in clause (ii) of ~~pursuant to a disposition permitted by~~ Section ~~10.04~~9.12(d)~~, as the case may be; provided that~~, in no event will the Borrower or any ~~of its Restricted Subsidiaries~~ Subsidiary Guarantor be required to take any ~~action~~ action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section ~~9.12; provided, further, that, Borrower~~ 9.12 (it being understood and agreed that such commercially reasonable efforts shall ~~give~~ not include the ~~Collateral Agent 45 days written notice prior~~ payment of any amounts to ~~granting any Mortgage~~ third-parties other than the payment of reasonable fees and disbursements of counsel to such third-parties in connection therewith). (f) Notwithstanding anything to the ~~Collateral Agent for~~ contrary contained herein or in the ~~benefit of the Secured Creditors as required herein and shall not grant such Mortgage until~~ Subsidiaries Guaranty: (i) the ~~Collateral Agent has~~ guaranty provided ~~written notice~~ by McLeodUSA Telecommunications Services, L.L.C. and LDMI Telecommunications, Inc. pursuant to ~~Borrower~~ the Subsidiaries Guaranty shall not guaranty the obligations of the ~~completion~~ Borrower hereunder in respect of any Initial Term Loans until the earlier of (x) the date on which the Borrower shall have received all necessary regulatory approvals from the Georgia Public Service Commission to permit such a guaranty, which approvals the Borrower agrees to use its commercially reasonable efforts to obtain as promptly as possible following the Restatement Effective Date, and (y) 60 days following the Restatement Effective Date (as such date may be extended by the Administrative Agent in its reasonable discretion); it being understood and agreed that, upon the earlier of the dates referred to in preceding clauses (x) and (y), such guaranties shall automatically (and without any further action) provide for a guaranty of all ~~required flood insurance due diligence~~ outstanding Initial Term Loans (and ~~flood insurance compliance which notice states~~ related obligations) and, without modifying the foregoing, the Borrower shall deliver to the Administrative Agent an acknowledgement, in form and substance reasonably satisfactory to the Administrative Agent, acknowledging that the ~~Collateral Agent is satisfied~~ Subsidiaries Guaranty of each such Subsidiary now covers all outstanding Initial Term Loans (and related outstandings) (together with such supporting documentation, resolutions and opinions of counsel as may be reasonably requested by the ~~results thereof and~~ Administrative Agent); and (ii) unless the ~~expiration~~ Borrower and the Majority Lenders with Revolving Loans and/or Revolving Loan Commitments otherwise agree in writing, the guaranty provided by each Designated Regulatory Subsidiary pursuant to the Subsidiaries Guaranty shall not guaranty any Revolving Loans, Swingline Loans and Letter of Credit Outstandings in excess of $50,000,000 in the aggregate until such time as such Designated Regulatory Subsidiary shall have received all necessary regulatory approvals from the applicable State PUCs to permit a guaranty of such ~~45 day period with no Lender having provided notice~~ excess amounts, which approvals the Borrower agrees to ~~Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with~~ use its commercially reasonable efforts to obtain as promptly as possible following the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real PropertyRestatement Effective Date.

Appears in 1 contract

Samples: Credit Agreement (Pyramid Communication Services, Inc.)

Additional Security; Further Assurances; etc. (a) Holdings ~~and Borrower~~ will, and will cause each ~~of the Subsidiary Guarantors~~ other Credit Party to, grant to the Collateral Agent (or such other trustee, sub-agent or other third party as may be required or desired under local law) for the benefit of the Secured Creditors security interests and Mortgages in such assets and ~~properties (in the case~~ owned Real Property of ~~Real Property, limited to Material Real Property) of Holdings, Borrower~~ Holdings and ~~the Subsidiary Guarantors~~ such other Credit Party as are ~~acquired after~~ not covered by the ~~Closing Date (other than assets constituting Excluded Collateral)~~ original Security Documents and as may be reasonably requested from time to time by the ~~Collateral~~ Administrative Agent or the Required Lenders (collectively~~, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time~~, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation consistent with any Security Documents entered into on the Closing Date and shall include such other documents as the Collateral Agent may reasonably request, including, but not limited to, title policies, surveys and opinions of counsel, and otherwise reasonably satisfactory in form and substance to the Collateral Agent and ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ shall ~~constitute, upon taking all necessary perfection action (which the Credit Parties agree to take pursuant to clause (e) below)~~ constitute valid and enforceable perfected security interests (or the equivalent under local law), hypothecations and Mortgages (except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law)), subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, superior to and prior to the rights of all third Persons ~~other than holders of Permitted Liens with priority by virtue of applicable law~~ and enforceable against third parties and subject to no other Liens except for Permitted ~~Liens~~Liens or, in the case of owned Real Property, the Permitted Encumbrances related thereto. The Additional Security Documents or instruments related thereto shall be have been, at the expense of Holdings and the Borrower, duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect ~~(subject to exceptions as are reasonably acceptable to the Collateral Agent)~~ the Liens in favor of the Collateral Agent (or such other trustee, sub-agent or other third party as may be required or desired under local law) required to be granted pursuant to the Additional Security ~~Documents~~Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. Notwithstanding ~~any other provision in~~ the foregoing, this ~~Agreement or any other Credit Document, no Excluded Subsidiary~~ Section 9.12(a) shall not apply to (and Holdings and its Subsidiaries shall not be required to ~~pledge~~ grant a Mortgage in) any owned Real Property the Fair Market Value of ~~its assets to secure~~ which is less than $1,000,000 or any ~~obligations of Borrower under the Credit Documents or guarantee the obligations of Borrower under the Credit Documents~~Leasehold. (b) Subject to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement, with respect to any Person that is or becomes a Restricted Subsidiary (or ceases to be an Excluded Subsidiary) after the Closing Date, Holdings and Borrower will, and will cause each applicable Restricted Subsidiary to, (i) deliver to the Collateral Agent the certificates, if any, representing all (or such lesser amount as is required) of the Equity Interests of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Credit Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Credit Party (in each case, to the extent required pursuant to the Security Agreement), (ii) cause such new Restricted Subsidiary (other than an Excluded Subsidiary) to (A) execute a joinder agreement to the Guaranty Agreement and a joinder agreement to each applicable Security Document, substantially in the form annexed thereto, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and (iii) at the reasonable request of the Administrative Agent, deliver or cause to be delivered to the Administrative Agent an opinion, addressed to the Administrative Agent and the other Lenders, of counsel reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 9.12(b) as the Administrative Agent may reasonably request. (c) Holdings and Borrower will, and will cause each of the other Credit Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Collateral ~~Agent~~Agent from time to time such schedules, ~~promptly~~confirmatory assignments, ~~upon the reasonable request~~ conveyances, financing statements, transfer endorsements, powers of ~~the Administrative Agent~~ attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral ~~Agent, at Borrower’s expense,~~ covered by any ~~document or instrument supplemental to or confirmatory~~ of the Security Documents as the Collateral Agent may reasonably require. Furthermore, Holdings will, and will cause the other Credit Parties that are Subsidiaries of Holdings to, deliver to the ~~extent deemed~~ Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent ~~or the Collateral Agent reasonably necessary for the continued validity, perfection and priority (subject~~ to the terms of the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, any Additional Junior Lien Intercreditor Agreement and any Additional Pari Passu Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Documentassure itself that this Section 9.12 has been complied with. (dc) If the Administrative Agent or the ~~Collateral Agent~~ Required Lenders reasonably ~~determines~~ determine that ~~it or the Lenders~~ they are required by law or regulation to have appraisals prepared in respect of any ~~Mortgaged Property~~Real Property of Holdings and the other Credit Parties constituting Collateral, Holdings and the Borrower will, at ~~its~~ their own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent. (d) If the Borrower designates any of its Foreign Subsidiaries that are organized under the laws of a Qualified Foreign Jurisdiction as a Designated Foreign Subsidiary, Holdings will cause each such Subsidiary to (i) execute the local law equivalent of the Subsidiaries Guaranty, the Security Agreement and the Pledge Agreement, in each case, in form and substance satisfactory to the Administrative Agent (ii), to the extent requested by the Administrative Agent or the Required Lenders, takes all actions required pursuant to this Section 9.12 and (iii) execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of counsel) of the type described in Section 6 as it would have had to deliver if it was a Credit Party on the Initial Borrowing Date. (e) Holdings and the Borrower ~~agrees~~ agree that each action required by clauses (a) through (d) of this Section 9.12 shall be completed as soon as possible, but in no event later than 90 60 days after such action is ~~required to be taken pursuant to such clauses or~~ requested to be taken by the Administrative ~~Agent, the Collateral~~ Agent ~~or the Required Lenders~~ (or such longer period of time as may be agreed to by the Administrative Agent or Collateral Agent shall otherwise agree, including with respect to any Real Property acquired after the Closing Date that Borrower has notified the Collateral Agent that it intends to dispose of pursuant to a disposition permitted by Section 10.04Agent), as the case may be; provided that, in no event will Borrower or any of its Restricted Subsidiaries be required to take any action to obtain consents from third parties with respect to its compliance with this Section 9.12; provided, further, that, Borrower shall give the Collateral Agent 45 days written notice prior to granting any Mortgage to the Collateral Agent for the benefit of the Secured Creditors as required herein and shall not grant such Mortgage until (i) the Collateral Agent has provided written notice to Borrower of the completion of all required flood insurance due diligence and flood insurance compliance which notice states that the Collateral Agent is satisfied with the results thereof and (ii) the expiration of such 45 day period with no Lender having provided notice to Borrower that it has not completed any necessary flood insurance due diligence or flood insurance compliance or that it is not satisfied with the results of any such due diligence or compliance (and the date by which any Credit Party is required to deliver Mortgages hereunder shall automatically be extended to the extent necessary to comply with the foregoing). Each of the parties hereto acknowledges and agrees that the grant of any Mortgage on Mortgaged Property of the Credit Parties (or any increase, extension or renewal of any Loans or Commitments at a time when any Mortgaged Property is subject to a Mortgage) shall be subject to (and conditioned upon) the prior delivery to the Collateral Agent of “life-of-loan” Federal Emergency Management Agency standard flood hazard determinations with respect to each Mortgaged Property and, to the extent any improved Mortgaged Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be a special flood hazard area, (i) delivery by the Collateral Agent to Borrower of a notice of special flood hazard area status and flood disaster assistance and, if such notice is delivered to Borrower at least two (2) Business Days prior to such grant, increase, extension or renewal, a duly executed acknowledgment of receipt thereof by Borrower and (ii) evidence of flood insurance as required by Section 9.03 hereof. Notwithstanding anything in any Credit Document to the contrary, if the Collateral Agent or any Lender is not satisfied with the results of any flood insurance due diligence or flood insurance compliance or any of the deliveries referred to in the immediately preceding sentence, and determines it is in its best interest not to require a Mortgage on any Material Real Property, the Credit Parties shall not be required to grant a Mortgage on such Material Real Property in favor of such Person or otherwise comply with the provisions of the Credit Documents relating to Mortgages with respect to such Material Real Property.

Appears in 1 contract

Samples: Credit Agreement (Global Cash Access Holdings, Inc.)

Common use of Additional Security; Further Assurances; etc Clause in Contracts