Additional Security; Further Assurances; etc. (a) 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 Pyxus Loan Obligations, 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 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 Senior Holders, Mortgages (and, if required by local law, related UCC fixture filings) over any Material Real Property. All such Mortgages (and, if applicable, UCC fixture filings) shall constitute valid and enforceable Liens subject to no other Liens except for Permitted Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement. The Mortgages (and related UCC filings) or 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 Senior Collateral Agent required to be granted pursuant to the Mortgages. (ii) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Senior Collateral Agent, in an insured amount reasonably satisfactory to the Senior Collateral Agent insuring the Senior Collateral 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/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement, with each such Mortgage Policy (1) to be in form and substance reasonably satisfactory to the Senior Collateral Agent, and (2) to include, to the extent applicable and available in the applicable jurisdiction at commercially reasonable rates, supplemental endorsements as reasonably requested by the Senior Collateral Agent; provided however, in lieu of a zoning endorsement the Senior Collateral Agent shall accept a zoning report. (iii) In connection with each Mortgage delivered pursuant to clause (i) above, to induce the 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 title company, 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 clause (i) above, the Senior Collateral Agent shall have received either an existing survey together with a no change affidavit sufficient for the title company to 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 (and all improvements thereon) in form and substance reasonably acceptable to the Senior Collateral Agent. (v) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received a “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, in form and substance acceptable to the Senior Collateral Agent (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower and applicable Subsidiary and evidence of flood insurance, in the event any 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 Senior Collateral Agent, and such other documents as the Senior Collateral Agent reasonably requests.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Pyxus International, Inc.)
Additional Security; Further Assurances; etc. (a) The Borrower shall cause, and will cause each Parent Guarantor will of the other Credit Parties to cause:
, each of its Wholly-Owned Domestic Subsidiaries (iother than Immaterial Subsidiaries) each formed or acquired (A) or which first becomes such a Wholly-Owned Domestic Subsidiary or ceases to be an Immaterial Subsidiary) after the Initial Borrowing Date to become a Credit Party (and a party to the Guaranty and Collateral Agreement by executing a supplement thereto in form reasonably satisfactory to the Administrative Agent) and to execute and deliver all other appropriate Security Documents, in each case, within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or any other after the first date upon which the respective Subsidiary of such 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 or ceases to be an Excluded Immaterial Subsidiary;
. Upon execution and delivery of the supplement to the Guaranty and Collateral Agreement, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Credit Documents and (ii) each Restricted Subsidiary or other Person that is not a Guarantor but is or becomes an obligor in respect ofshall grant Liens to the Administrative Agent, or grants a security interest for the benefit of the Administrative Agent and the Lenders, in any property of its assets to supportsuch Credit Party that constitutes Collateral as set forth in, and in accordance with, the ABL ObligationsSecurity Documents. In addition, the New Pyxus Loan Obligations, 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 new Wholly-Owned Domestic SubsidiarySubsidiary that is required to execute any Credit Document shall execute and deliver, ceased or cause to be an Excluded Subsidiaryexecuted and delivered, became an obligor or granted a security interest as all other relevant documentation (including opinions of counsel) of the type described in clause (ii), or was formed, as applicable (Section 6 as such date may be extended by new Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Required Lenders in their sole discretion)Initial Borrowing Date. For the avoidance of doubt, to (A) become if any Subsidiary that constitutes a Guarantor as described in the Guarantee Agreement issues any capital stock or other Equity Interests (including by way of execution sales of a joinder agreement thereto substantially in the form attached thereto as Exhibit A and (Btreasury stock) 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 options or the District of Columbiawarrants to purchase, as described in or securities convertible into, capital stock or other Equity Interests (other than issuances that constitute a Disposition permitted pursuant to Section 10.02(iv)), such other applicable Security Document or as may Subsidiary shall be customary in required to remain a Guarantor after giving effect to such Person’s jurisdiction of formationissuance.
(b) The Borrower may electshall, and shall cause each 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 the Borrower and such other Credit Party as are not covered by the original Security Documents (collectively, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent. Notwithstanding the foregoing, this Section 9.11(b) shall not apply to (and the Borrower and its sole discretion, to cause any Subsidiary that is Subsidiaries shall not otherwise be required to be grant a Guarantor Mortgage in) (i) any Leasehold for which the aggregate annual rental payments are less than $1,000,000, (ii) any Leasehold with respect to become which the respective Credit Party has not obtained (after using commercially reasonable efforts to obtain same) the consent of the lessor to grant a Guarantormortgage in such Leasehold, in which case such Subsidiary shall comply with the requirements in Section 5.13(a(iii) above, other than the 60 day period described thereinany ICTC Excluded Collateral or (iv) any Excluded Property.
(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 other Loan Credit 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)certificates, Real Property surveys, reports, landlord waivers, bailee agreements, 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 Credit Parties that are Subsidiaries of the Borrower to, deliver to the Senior Collateral Agent such opinions of counsel counsel, title insurance and other related documents as may be reasonably requested by the Senior Collateral Administrative Agent to assure itself that this Section 5.13 9.11 has been complied with.
(fd) Within one-hundred twenty (120) days (or such longer period as If the Administrative Agent may agree in its reasonable discretion) of or 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 Senior Holders, Mortgages (and, if required by local law, related UCC fixture filings) over any Material Real Property. All such Mortgages (and, if applicable, UCC fixture filings) shall constitute valid and enforceable Liens subject to no other Liens except for Permitted Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement. The Mortgages (and related UCC filings) or instruments related thereto shall have been duly recorded or filed in such manner and in such places as Required Lenders reasonably determine that they are required by law or regulation to establish, perfect, preserve and protect the Liens have appraisals prepared in favor respect of any Real Property of the Senior Collateral Agent required to be granted pursuant Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the Mortgages.
(ii) In connection with each Mortgage delivered pursuant to clause (i) above, Administrative Agent appraisals that satisfy the Senior Collateral Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Senior Collateral Agent, in an insured amount reasonably satisfactory to the Senior Collateral Agent insuring the Senior Collateral 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 applicable requirements of the ABL/Term Loan/Notes Intercreditor Agreement Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and the Intercreditor Enforcement Act of 1989, as amended, and Collateral Agency Agreement, with each such Mortgage Policy (1) to which shall otherwise be in form and substance reasonably satisfactory to the Senior Collateral Agent, and (2) to include, to the extent applicable and available in the applicable jurisdiction at commercially reasonable rates, supplemental endorsements as reasonably requested by the Senior Collateral Agent; provided however, in lieu of a zoning endorsement the Senior Collateral Agent shall accept a zoning report.
(iii) In connection with each Mortgage delivered pursuant to clause (i) above, to induce the 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 title company, 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 clause (i) above, the Senior Collateral Agent shall have received either an existing survey together with a no change affidavit sufficient for the title company to 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 (and all improvements thereon) in form and substance reasonably acceptable to the Senior Collateral Administrative Agent.
(ve) In connection with each Mortgage delivered To the extent any action that would otherwise have been required to be taken pursuant to clause Sections 6.08 and 6.09 hereof have not been taken on or prior to the Initial Borrowing Date as permitted thereby, 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 (ix) above60 days after the Initial Borrowing Date in the case of actions otherwise required under Section 6.08(a) and (y) 120 days after the Initial Borrowing Date in the case of actions required to be taken pursuant to Section 6.09(a), the Senior Collateral Agent shall have received a “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination in each case as such dates may be extended (with respect to each Mortgaged Property, in form and substance acceptable to a given action or actions) at the Senior Collateral Agent (together with notice about special flood hazard area status and flood disaster assistance, duly executed by reasonable discretion of the Borrower and applicable Subsidiary and evidence of flood insurance, in the event any improvements are located in a special flood hazard area) in accordance with the Flood LawsAdministrative Agent.
(vif) In connection with The Borrower shall complete each Mortgage delivered pursuant action required by clauses (b) through (d) of this Section 9.11 as soon as possible, but in no event later than 120 days after, such action is requested to clause be taken by the Administrative Agent or the Required Lenders (i) above, as such date me be extended at the Senior Collateral Agent shall have received opinions sole discretion of counsel for the Loan Parties in the jurisdiction where such Mortgaged Property is locatedAdministration Agent); provided that, in form and substance reasonably satisfactory no event will Borrower or any of its Subsidiaries be required to the Senior Collateral Agenttake any action, and such other documents as the Senior Collateral Agent reasonably requeststhan using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.11.
Appears in 1 contract
Additional Security; Further Assurances; etc. (a) The Borrower and each Parent Guarantor will cause:
(i) , and will cause each (A) of the other Credit Parties to cause, each of its Wholly-Owned Domestic Subsidiary Subsidiaries formed or acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary) after the Effective Date to become a Credit Party (and, if requested by the Administrative Agent (at the direction of the Required Lenders) to execute and deliver any applicable deposit account control agreements, securities account control agreements, intellectual property security agreement, intellectual property agreement supplements and all other appropriate Security Documents, in each case, in form and substance satisfactory to the Required Lenders in their sole discretion within ten (10) days (or such longer time period if agreed to by the Administrative Agent at the direction of the Required Lenders) after the formation or acquisition thereof or any other after the first date upon which the respective Subsidiary of such Person that becomes a Wholly-Owned Domestic Subsidiary thereof after Subsidiary. Upon execution and delivery of a joinder to this Agreement, each such Person (i) shall become a Guarantor hereunder and thereupon shall have all of the Closing Date (rights, benefits, duties, and obligations in each case, other than any Excluded Subsidiary) such capacity under the Credit Documents 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 ofwill grant Liens to the Collateral Agent, or grants a security interest for the benefit of the Secured Creditors, in any property of its assets such Credit Party which constitutes Collateral pursuant to support, the ABL Obligations, the New Pyxus Loan Obligations, 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 Security Documents satisfactory 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 Lender in their sole discretion), if the Final DIP Order does not already create a valid and perfected Lien on such assets . In addition, each new Wholly-Owned Subsidiary that is required to (A) become a Guarantor as execute any Credit Document shall execute and deliver, or cause to be executed and delivered, all other relevant documentation of the type described in Section 6 as such new Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Guarantee Agreement by way of execution of a joinder agreement thereto substantially in Effective Date, including 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 filing of the United States UCC financing statements (or their equivalent). The Borrower shall deliver to the Administrative Agent prompt written notice if it 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 formationCredit Party acquires any Real Property on which any improvement is located that is subject to federal flood insurance laws and requirements.
(b) The Borrower may electwill, and will cause each other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests in its sole discretionsuch assets (including, to cause if requested by the Administrative Agent at the direction of the Required Lenders, mortgages on any Subsidiary that is Real Property) and of the Borrower and such other Credit Party as are not otherwise required to be a Guarantor to become a Guarantorcovered by the original Security Documents (collectively, in which case such Subsidiary shall comply with the requirements in Section 5.13(a) above, other than the 60 day period described therein“Additional Security Documents”).
(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 other Loan Credit 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)certificates, Real Property surveys, reports, landlord waivers, bailee agreements, 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 (at the direction of the Required Lenders) may reasonably require. Furthermore, the Borrower will, and will cause the other Loan Credit Parties that are Subsidiaries of the Borrower to, deliver to the Senior Collateral Agent such opinions of counsel counsel, title insurance and other related documents as may be reasonably requested by the Senior Collateral Administrative Agent (at the direction of the Required Lenders) to assure itself that this Section 5.13 9.11 has been complied with.
(fd) Within one-hundred twenty (120) days (or such longer period as If the Administrative Agent may agree in its reasonable discretion) of or 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 Senior Holders, Mortgages (and, if required by local law, related UCC fixture filings) over any Material Real Property. All such Mortgages (and, if applicable, UCC fixture filings) shall constitute valid and enforceable Liens subject to no other Liens except for Permitted Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement. The Mortgages (and related UCC filings) or instruments related thereto shall have been duly recorded or filed in such manner and in such places as Required Lenders reasonably determine that they are required by law or regulation to establish, perfect, preserve and protect the Liens have appraisals prepared in favor respect of any Real Property of the Senior Collateral Agent required to be granted pursuant Borrower and the other Credit Parties constituting Collateral, the Borrower will, at its own expense, provide to the Mortgages.
(ii) In connection with each Mortgage delivered pursuant to clause (i) aboveAdministrative Agent appraisals which satisfy the applicable requirements of such laws or regulations, the Senior Collateral Agent and which shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Senior Collateral Agent, in an insured amount reasonably satisfactory to the Senior Collateral Agent insuring the Senior Collateral 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/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement, with each such Mortgage Policy (1) to otherwise be in form and substance reasonably satisfactory to the Senior Collateral Agent, and (2) to include, to the extent applicable and available Administrative Agent in the applicable jurisdiction at commercially reasonable rates, supplemental endorsements as reasonably requested by the Senior Collateral Agent; provided however, in lieu of a zoning endorsement the Senior Collateral Agent shall accept a zoning reportits sole discretion.
(iiie) In connection with To the extent the Required Lenders request any deposit account control agreement, securities account control agreement or any intellectual property security agreement, in each Mortgage delivered pursuant to clause (i) above, to induce the 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 title company, 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 clause (i) above, the Senior Collateral Agent shall have received either an existing survey together with a no change affidavit sufficient for the title company to 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 (and all improvements thereon) in form and substance reasonably acceptable to the Senior Collateral Agent.
(v) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received a “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertycase, in form and substance acceptable satisfactory to the Senior Collateral Administrative Agent (together with notice about special flood hazard area status and flood disaster assistancein its sole discretion, duly executed by then the Borrower and applicable Subsidiary and evidence shall cause all such actions to be taken as promptly as practicable after the Effective Date (at the direction of flood insurance, in the event any improvements are located in a special flood hazard area) in accordance with the Flood LawsRequired Lenders).
(vif) In The Borrower agrees that each action required by clauses (b) through (e) of this Section 9.11 shall be completed as soon as possible, but in no event later than fifteen (15) days after such action is requested to be taken by the Administrative Agent (at the direction of the Required Lenders) or the Required Lenders (as such date may be extended at the sole discretion of the Administration Agent acting at the direction of the Required Lenders); provided that, in no event will Borrower or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 9.11.
(g) As soon as practicable, and in any event not later than five (5) Business Days after the request is made by the Required Lenders, each Credit Party shall execute and deliver to the Administrative Agent notices of the Final DIP Order, abstracts of the Final DIP Order or any other document reasonably requested by the Administrative Agent or the Required Lenders in connection with each Mortgage delivered pursuant to clause (i) above, recording or registering any security interests or Liens against any Real Property of 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 Senior Collateral Agent, and such other documents as the Senior Collateral Agent reasonably requestsCredit Parties.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Walter Energy, Inc.)
Additional Security; Further Assurances; etc. (a) The Administrative Borrower shall cause, and will cause each Parent Guarantor will of the other Credit Parties to cause:
, each of its Domestic Subsidiaries (iother than Excluded Subsidiaries) each formed or acquired (Aor which first becomes such a Domestic Subsidiary) Wholly-Owned Domestic Subsidiary thereof or any other Person that becomes a Wholly-Owned Domestic Subsidiary thereof after the Closing Initial Borrowing Date to become a Credit Party (and a party to the Guaranty and Collateral Agreement by executing a supplement thereto in form reasonably satisfactory to the Administrative Agent) and to execute and deliver all other appropriate Security Documents, in each case, other than any Excluded within thirty (30) days (or such longer time period if agreed to by the Administrative Agent in its sole discretion) after the formation or acquisition thereof or after the first date upon which the respective Subsidiary of such Person becomes a Domestic Subsidiary. Upon execution and delivery of the supplement to the Guaranty and Collateral Agreement, each such Person (i) shall become a Guarantor hereunder and (B) Wholly-Owned Domestic Subsidiary that ceases to be an Excluded Subsidiary;
thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Credit Documents and (ii) shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, in any property of such Credit Party that constitutes Collateral as set forth in, and in accordance with, the Security Documents. In addition, each Restricted new Subsidiary that is required to 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 type described in Section 6 as such new Subsidiary would have had to deliver if such new Subsidiary were a Credit Party on the Initial Borrowing Date. For the avoidance of doubt, if any Subsidiary that constitutes a Guarantor issues any capital stock 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 Pyxus Loan Obligations, the New Notes Obligations or the Existing Notes Obligations Equity Interests (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 including by way of execution sales of a joinder agreement thereto substantially in the form attached thereto as Exhibit A and (Btreasury stock) 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 options or the District of Columbiawarrants to purchase, as described in or securities convertible into, capital stock or other Equity Interests (other than issuances that constitute a Disposition permitted pursuant to Section 10.02(iv)), such other applicable Security Document or as may Subsidiary shall be customary in required to remain a Guarantor after giving effect to such Person’s jurisdiction of formationissuance.
(b) The Administrative Borrower may electshall, and shall cause each other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors security interests (including, without limitation, As-Extracted Collateral Filings, UCC Fixture Filings) and Mortgages in such assets and Real Property of the Administrative Borrower and such other Credit Party as are not covered by the original Security Documents (collectively, the “Additional Security Documents”). All such security interests and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent. Notwithstanding the foregoing, this Section 9.11(b) shall not apply to (and the Administrative Borrower and its sole discretionSubsidiaries shall not be required to grant a Mortgage in) (i) any Leasehold with respect to which the respective Credit Party has not obtained (after using commercially reasonable efforts to obtain same) the consent of the lessor to grant a mortgage in such Leasehold or (ii) any Excluded Property. With respect to the lessor consents described in the previous sentence, until consents have been obtained for all Leaseholds requiring such lessor consent, the Administrative Borrower shall, and shall cause each other applicable Credit Party to, use commercially reasonable efforts to obtain such lessor consents. In addition, to cause the extent Administrative Borrower becomes aware of any Subsidiary additional material Real Property (other than Excluded Real Property) that is not otherwise required reflected on Schedule 8.12, Administrative Borrower shall endeavor to be a Guarantor notify Collateral Agent of the same and Administrative Agent and Collateral Agent shall mutually agree upon any appropriate revisions 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 thereinSchedule 8.12.
(c) Subject to Section 5.15 and the applicable Security Document, the Parent Guarantors, the The Administrative 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 other Loan Credit Parties to, at the expense of the Administrative 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)certificates, Real Property surveys, reports, landlord waivers, bailee agreements, control agreements (other than with respect to Excluded Assets) agreements, environmental reports, Flood Hazard Determination 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 requirerequire including to address any issues contained in any of the deliverables (including, without limitation, any violations of law or issues of title) described above, as reasonably required by the Collateral Agent. Furthermore, the Administrative Borrower will, and will cause the other Loan Credit Parties that are Subsidiaries of the Administrative Borrower to, deliver to the Senior Collateral Agent such opinions of counsel counsel, title insurance and other related documents as may be reasonably requested by the Senior Collateral Administrative 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 Senior Holders, Mortgages (and, if required by local law, related UCC fixture filings) over any Material Real Property. All such Mortgages (and, if applicable, UCC fixture filings) shall constitute valid and enforceable Liens subject to no other Liens except for Permitted Liens related thereto and, subject to the terms of the ABL/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement. The Mortgages (and related UCC filings) or 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 Senior Collateral Agent required to be granted pursuant to the Mortgages.
(ii) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received a Mortgage Policy relating to such Mortgage, issued by a title insurer reasonably satisfactory to the Senior Collateral Agent, in an insured amount reasonably satisfactory to the Senior Collateral Agent insuring the Senior Collateral 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/Term Loan/Notes Intercreditor Agreement and the Intercreditor and Collateral Agency Agreement, with each such Mortgage Policy (1) to be in form and substance reasonably satisfactory to the Senior Collateral Agent, and (2) to include, to the extent applicable and available in the applicable jurisdiction at commercially reasonable rates, supplemental endorsements as reasonably requested by the Senior Collateral Agent; provided however, in lieu of a zoning endorsement the Senior Collateral Agent shall accept a zoning report.
(iii) In connection with each Mortgage delivered pursuant to clause (i) above, to induce the 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 title company, 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 clause (i) above, the Senior Collateral Agent shall have received either an existing survey together with a no change affidavit sufficient for the title company to 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 (and all improvements thereon) in form and substance reasonably acceptable to the Senior Collateral Agent.
(v) In connection with each Mortgage delivered pursuant to clause (i) above, the Senior Collateral Agent shall have received a “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, in form and substance acceptable to the Senior Collateral Agent (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower and applicable Subsidiary and evidence of flood insurance, in the event any 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 Senior Collateral Agent, and such other documents as the Senior Collateral Agent reasonably requests.Section
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