Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. (b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent. (c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 4 contracts
Samples: Credit Agreement (Tengasco Inc), Credit Agreement (Tengasco Inc), Credit Agreement (Riley Exploration - Permian, LLC)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a wholly-owned Subsidiary of Borrower Representative (including any Subsidiary that is not wholly-owned solely as a Loan Partyresult of directors’ qualifying shares required by applicable law), whether pursuant to formation, acquisition or otherwise, (x) the Borrower Representative shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a wholly-owned Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent), the Borrower Borrowers shall cause such Subsidiary (i) to become a new Guarantor (unless such Subsidiary (1) is a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor, (2) is prohibited by law from becoming a Guarantor, (3) is a Subsidiary of a Foreign Subsidiary that is not required to be a Guarantor or (4) the primary assets of such Subsidiary are Capitol Stock or Indebtedness of a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor) and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) provided, that no Domestic Loan Party shall be required to grant Liens take any action under the law of any non-U.S. jurisdiction in favor order to create or perfect a security interest in any assets of any Borrower or Loan Party which assets are either located outside of the Administrative Agent United States or would require action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest therein (other than, subject to the limitations set forth in the proved Oil and Gas Properties paragraph below, stock of such a first-tier Foreign Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15of any Borrower or Domestic Loan Party), and (iiiii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) reasonably requested by Administrative Agent and consistent with the documents delivered by the Loan Parties on or prior to take all such other actions as such Subsidiary would have been required to deliver and take the Closing Date pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties3.1(b). In addition, within five (5) Business Days 30 days after the date any Person becomes a Domestic Subsidiary of a Loan Partythe Borrower Representative (or such later date as agreed to by the Administrative Agent), the Borrower Representative shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (if any) to the Administrative Agent, together with appropriate powers executed in blank; provided that in no event shall any Capital Stock of any non-wholly owned Domestic Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Representative shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrowers are working in good faith, such longer period as the Administrative Agent shall permit in its sole discretion, the Borrowers shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock, if any, to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request provided, that Liens on the Capital Stock of (or other ownership interest in) a Foreign Subsidiary that are required to be pledged shall be documented under U.S. law if the cost of providing a local law pledge exceeds the benefit to Lenders, as determined by Administrative Agent in its reasonable discretion; provided further that in no event shall any Capital Stock of any non-wholly owned Foreign Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(c) The Borrower agrees Borrowers agree that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Borrowers or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 4 contracts
Samples: Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp), Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary (other than (a) any Insurance Subsidiary, (b) any Subsidiary of a Loan Partyan Insurance Subsidiary or (c) any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License) (or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan DocumentsDocuments (it being understood and agreed that, with respect to any Foreign Subsidiary, this clause (i) shall include the granting of Liens and taking of all perfection actions under the local laws of such Foreign Subsidiary’s jurisdiction of formation as may be reasonably required by the Administrative Agent), (ii) to grant Liens in favor of the Administrative Agent in all interests in Real Estate (other than Excluded Property) to the proved Oil and Gas Properties of such Subsidiary extent required by Section 5.13 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a direct Subsidiary of a Loan PartyParty (or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary directly owned by a Loan Party (other than Excluded Property) to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if subject to the Capital Stock of such Subsidiary is certificatedIntercreditor Agreement, deliver the original certificates evidencing such pledged Capital Stock (other than Excluded Property) to the Administrative Agent, together with appropriate powers executed in blank; provided, that (1) if such Person that becomes a Subsidiary is an Insurance Subsidiary, a Subsidiary of an Insurance Subsidiary or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, this requirement to pledge all of the Capital Stock of such Person shall not apply only to the extent the pledge thereof is (or would be) deemed a change of control of such Person or is (or would be) otherwise prohibited by applicable law or regulations and (2) in the case of any Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, it is understood and agreed that until such approval is obtained, such Subsidiary shall not transact business or hold any material assets. For the avoidance of doubt, (x) in no event shall any Insurance Company, Subsidiary of an Insurance Company or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License be required to become a Subsidiary Loan Party, a Loan Party or a Guarantor hereunder; however, for the avoidance of doubt, in the case of the Persons described in clause (1) immediately above, each such Person shall be subject to the applicable covenants contained herein and (y) subject to Section 5.15, the Capital Stock of RRC shall be pledged and perfected under the laws of Cayman Islands (to the extent not prohibited thereunder).
(b) The Subject to the Intercreditor Agreement, the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 3 contracts
Samples: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.), Term Loan Agreement (Root, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person (but specifically excluding any Specified Strategic Joint Venture) becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Issuer shall promptly notify the Administrative Collateral Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary Purchasers thereof and (y) within five 30 days (5or such longer period as the Required Purchasers shall agree in writing) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Issuer shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property that is not Excluded Property by executing and delivering to the Administrative Collateral Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent and the Required Purchasers, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing authorizing, delivering and delivering, at the request of the Administrative Agent, filing such UCC financing statements or similar instruments required by the Administrative Agent necessary to perfect and maintain the Liens in favor of the Administrative Collateral Agent and granted under any of the Loan Note Documents, (ii) in accordance with Section 5.13, to grant Liens in favor of the Administrative Collateral Agent in all fee ownership interests in Real Estate having a fair market value in excess of $2,500,000 as of the proved Oil and Gas Properties of date such Person becomes a Domestic Subsidiary by executing and delivering to the Administrative Collateral Agent such Mortgages, to the extent Real Estate Documents necessary to perfect and maintain compliance with Section 5.15the Collateral Agent’s security interest, and (iii) to deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Note Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five 30 days (5or such longer period as the Required Purchasers shall permit in writing in their sole discretion) Business Days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Issuer shall, or shall cause the applicable Loan Note Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Collateral Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent and the Required Purchasers, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (to the Administrative extent that such Capital Stock is certificated) to the Collateral Agent, together with appropriate powers executed in blank, in each case, other than any such Capital Stock that constitutes Excluded Property.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (i) the Issuer shall promptly notify the Collateral Agent and the Purchasers thereof and (ii) to the extent such Foreign Subsidiary is owned directly by any Note Party, within 60 days after such Person becomes a Foreign Subsidiary (or such longer period as the Required Purchasers shall agree in writing), the Issuer shall, or shall cause the applicable Note Party to, (A) pledge not more than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary to the Collateral Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Collateral Agent and the Required Purchasers, (B) deliver the original certificates evidencing such pledged Capital Stock (to the extent that such Capital Stock or portion thereof is certificated) to the Collateral Agent, together with appropriate powers executed in blank and (C) deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Collateral Agent or the Required Purchasers may reasonably request.
(c) The Borrower Issuer agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Collateral Agent shall have a validvalid and enforceable, first priority perfected Lien (subject to Specified Permitted Liens) on the property required to be pledged pursuant to subsection clauses (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or by filing UCC financing statements, or by taking actual possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Issuer or the applicable Loan Note Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Collateral Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryRequired Purchasers.
Appears in 2 contracts
Samples: First Lien Note Purchase Agreement (BioScrip, Inc.), Second Lien Note Purchase Agreement (BioScrip, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved such Oil and Gas Properties of such Subsidiary as requested by the Administrative Agent by executing and delivering to the Administrative Agent such Mortgages, to Mortgages as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Ring Energy, Inc.), Credit Agreement (Ring Energy, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of The Borrower or a will cause each future Significant Domestic Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to promptly execute and deliver to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, Administrative Agent (x) the Borrower shall notify the Administrative Agent and the Lenders not less no later than ten (10) 10 Business Days prior to after the formation first Determination Date (as defined below) following the creation or acquisition of such Significant Domestic Subsidiary and (including by way of Division) or the date on which such Subsidiary becomes a Significant Domestic Subsidiary, or (y) within five (5) Business Days after such Person becomes a Subsidiary in the case of a Loan PartySignificant Domestic Subsidiary created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the Borrower shall cause consummation of such Subsidiary Permitted Acquisition, in each case (i) to become a new Guarantor the Subsidiary Guaranty, the Subsidiary Pledge Agreement and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Subsidiary Security Agreement in form and substance reasonably satisfactory to the Administrative Agent(or appropriate joinders thereto, and authorizing and deliveringas applicable), at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if as may reasonably be requested by the Administrative Agent, legal opinions) and landlord/mortgagee waivers (provided that, in the case of landlord/mortgagee waivers, if the Borrower uses commercially reasonable efforts to take all obtain such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on waivers from the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 applicable counterparties thereto, Borrower’s obligations with respect to any proved Oil and Gas Properties. In addition, within five (5such waivers under this Section 5.11(a) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agentbe satisfied), and (ii) if the Capital Stock an opinion of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock counsel from counsel and in form and substance reasonably acceptable to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees thatwill pledge to the Collateral Agent (for the benefit of the Secured Parties) pursuant to the Borrower Pledge Agreement (or, if applicable, cause a Significant Domestic Subsidiary to pledge to the Collateral Agent (for the benefit of the Secured Parties) pursuant to the Subsidiary Pledge Agreement) (x) no later than 10 Business Days after the first Determination Date following the due execution and delivery creation or acquisition of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco or the date on which a first-tier Foreign Subsidiary that is a Restricted Subsidiary becomes a Significant Foreign Subsidiary or a Foreign Subsidiary Holdco becomes a Significant Foreign Subsidiary Holdco, or (y) in the case of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the consummation of such Permitted Acquisition, in each case (i) 65% of the Collateral Documents required to be executed voting Equity Interests of such first-tier Significant Foreign Subsidiary or such Significant Foreign Subsidiary Holdco formed or acquired after the Effective Date and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (aii) (to the extent that such Lien can be perfected by execution, delivery 100% of the Collateral Documents and/or recording non-voting Equity Interests of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower such first-tier Significant Foreign Subsidiary or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agentsuch Significant Foreign Subsidiary Holdco.
(c) In the event that, subsequent addition to the Closing Dateforegoing, any Person becomes a subsidiary of a Loan Party, whether pursuant except to formation, acquisition or otherwise, and the extent set forth in the Borrower elects for such Person to become an Unrestricted Subsidiary under this Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement and the Subsidiary Security Agreement, respectively, the Borrower, its Significant Domestic Subsidiaries and each Subsidiary Guarantor shall notify cause such documents and instruments as may be reasonably requested by the Collateral Agent (or any Lender through the Collateral Agent) from time to time to be executed and delivered and do such further acts and things as reasonably may be required in order for the Collateral Agent, for the benefit of the Secured Parties, to obtain a fully perfected first priority Lien on all Collateral, subject to Liens permitted by Section 6.02 and subject to Section 5.11(f). For purposes of this Section 5.11, the “Determination Date” shall be the date of delivery of the annual financial statements pursuant to Section 5.01(a).
(d) In the event that any ECA Borrower or ECA Guarantor ceases to be party to a Permitted ECA Financing, including due to the repayment of its obligations under such Permitted ECA Financing, and such ECA Borrower or ECA Guarantor is (or would be, but for the fact that it is an ECA Borrower or ECA Guarantor) a Significant Domestic Subsidiary or a Significant Foreign Subsidiary, the Borrower shall comply with this Section 5.11 with respect to such Restricted Subsidiary within 90 calendar days from the date such Restricted Subsidiary ceases to be a party to a Permitted ECA Financing.
(e) From and after repayment in full of a Permitted ECA Financing of an ECA Borrower (other than any such repayment that is in connection with a refinancing of such Permitted ECA Financing) that was incurred under Section 6.01(b)(xxxv) and so long as such ECA Borrower is not at such time party to any other Permitted ECA Financing or, in the case of any ECA Borrower that is a Foreign Subsidiary, any other Indebtedness that is permitted hereunder that is secured by a pledge of the Equity Interest of such ECA Borrower, the Borrower and its Restricted Subsidiaries will not pledge the Equity Interests of such ECA Borrower in favor of any Person other than Collateral Agent for the benefit of the Secured Parties (it being understood that this clause (e) shall not constitute a requirement that the Equity Interests of any ECA Borrower be pledged in favor of the Collateral Agent for the benefit of the Secured Parties); provided that if such Equity Interests are pledged in favor of the Collateral Agent for the benefit of the Secured Parties, such Equity Interests may also be pledged for the benefit of holders of any other Indebtedness permitted by this Agreement that is secured by Permitted Liens on the Collateral on a pari passu basis with, or junior basis to, the Liens securing the Secured Obligations (so long as the holders of such Indebtedness are subject to the Pari Passu Intercreditor Agreement or a Customary Intercreditor Agreement, as applicable).
(f) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, but without waiving or limiting any obligation of the Borrower hereunder, the Administrative Agent and Collateral Agent will not take any action in respect of the Collateral pursuant to this Agreement or any other Loan Document that would constitute or result in any assignment of any Communications License held by the Borrower or any of its Subsidiaries (or assigned or transferred to the Borrower or any of its Subsidiaries) or any transfer of control of the holder of any Communications License held by the Borrower or any of its Subsidiaries (or assigned or transferred to the Borrower or any of its Subsidiaries), within the meaning of Section 310(d) of the Communications Act or other Communications Laws, if such assignment of such Communications License or such transfer of control would require thereunder the prior approval of the FCC or other Governmental Authority, without first obtaining such approval. The Administrative Agent and the Collateral Agent agrees that (a) voting rights in the Equity Interests of each Subsidiary Guarantor, but solely to the extent any such Subsidiary Guarantor is the holder of any Communications License, will remain with the holders of such voting rights upon and following the occurrence of an Event of Default until any required prior approvals of the FCC or other Governmental Authority, as applicable, shall have been obtained; (b) to the extent required by law, upon and following the occurrence of any Event of Default and foreclosure upon the Equity Interests of any Subsidiary of the Borrower holding any Communications License by the Administrative Agent or the Collateral Agent, there will be either an arm’s length private or public sale of such Equity Interests; and (c) prior to the exercise of stockholder rights by the purchaser at any such sale, the prior consent of the FCC pursuant to Section 310(d) of the Communications Act or any other Communications Laws, and of any other Governmental Authority pursuant to applicable Communications Laws, will be obtained.
(g) Notwithstanding anything to the contrary herein, (x) in the event that any Loan Party grants a Lien under the Senior Secured Revolving Credit Documents, the Senior Secured Term Loan Documents or the Senior Secured Notes Documents in any assets of any Loan Party and such assets do not otherwise constitute Collateral under Security Documents securing the Secured Obligations, except to the extent inconsistent with Section 2.1(e) of the Pari Passu Intercreditor Agreement or if such Lien is declined in writing by the Collateral Agent after written request from the Borrower, such Loan Party shall concurrently therewith (i) to xxxxx x Xxxx to the Collateral Agent for the benefit of the Secured Parties in such asset and cause such assets to constitute Collateral under the Security Documents to secure the Secured Obligations, (ii) to take such actions as may be necessary to perfect the Liens granted to the Collateral Agent therein and (iii) to take all other necessary steps reasonably requested by the Collateral Agent in connection with the foregoing and (y) in the event that any Loan Party executes or delivers any agreement or instrument or takes any other action to perfect, preserve or maintain the security interests granted under the Senior Secured Revolving Credit Documents, the Senior Secured Term Loan Documents or the Senior Secured Notes Documents, except to the extent inconsistent with Section 2.1(e) of the Pari Passu Intercreditor Agreement, such Loan Party shall, unless declined in writing by the Collateral Agent, concurrently therewith deliver such agreement or instrument, or take such action to perfect, preserve or maintain the security interests granted to the Collateral Agent under the Security Documents; provided, however, that execution and delivery of a control agreement over deposit accounts and securities accounts under the Senior Secured Revolving Credit Documents shall be deemed to satisfy any requirement to deliver a control agreement to the Collateral Agent with respect to such deposit account or securities account (it being understood that the foregoing shall not affect Section 2.9 of the Pari Passu Intercreditor Agreement, and the Collateral Agent and the Secured Parties shall obtain the benefit of perfection thereunder with respect to such deposit accounts and securities accounts).
(h) The Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or the delivery of other deliverables with respect to, particular assets, and particular assets may be excluded from the Collateral, to the extent that the Administrative Agent and the Lenders Borrower reasonably agree in writing that the cost of creating or perfecting such election not less than ten (10) Business Days prior security interests in such assets, shall be excessive in relation to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as benefits to be obtained by the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of (other than an Excluded Subsidiary) or an Unrestricted Subsidiary is designated as a Loan PartyRestricted Subsidiary or an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent may permit) Business Days after such Person becomes a Subsidiary of or is designated a Loan PartyRestricted Subsidiary or ceases to be an Immaterial Subsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor by executing and delivering to the Administrative Agent a joinder to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, Documents and (iii) to deliver all such other documentation (including, without limitation, certified organizational documentsOrganization Documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and customary legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 on the Closing Date if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesDate. In addition, within five 30 days (5or such longer period as the Administrative Agent may permit) Business Days after the date any Person becomes a Domestic Subsidiary of (other than a Domestic Foreign Holdco), to the extent such Domestic Subsidiary is owned directly by any Loan PartyParty and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), the Borrower shall, or shall cause the applicable Loan Party to shall (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Domestic Foreign Holdco, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof and (y) to the extent such Foreign Subsidiary or Domestic Foreign Holdco is owned directly by any Loan Party and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), within 30 days (or such longer period as the Administrative Agent may permit) after such Person becomes a Foreign Subsidiary or Domestic Foreign Holdco, the applicable Loan Party shall (i) pledge all of the Capital Stock (but, in any event, not to exceed 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock) of such Foreign Subsidiary or Domestic Foreign Holdco, as applicable, owned by such Loan Party, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority (subject to Liens permitted by Section 7.2) perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or, if required to be delivered, possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(cd) In the event that, subsequent Notwithstanding anything herein to the Closing Datecontrary or in any other Loan Document, (i) the Borrower and the Guarantors shall not be required create or perfect a security interest under the laws of any Person becomes non-U.S. jurisdiction or to create or perfect a subsidiary security interest in assets located or titled outside the U.S. or to reimburse or indemnify the Administrative Agent for any costs or expenses incurred in connection with the taking of any of the foregoing actions in any non-U.S. jurisdiction and (ii) perfection shall not be required with respect to the following: (A) commercial tort claims with a claim value of less than $2,000,000; (B) letter-of-credit rights with a face amount less than $2,000,000 (other than those to which perfection of the security interest in such Collateral is accomplished solely by the filing of a Loan Party, whether pursuant to formation, acquisition or otherwise, and UCC financing statement); provided that neither the Borrower elects for such Person nor any Guarantor shall be required to become establish the Administrative Agent’s “control” (within the meaning of Section 9-107 of the UCC) over any letter-of-credit rights with a face amount greater than or equal to $2,000,000 except upon the Administrative Agent’s request during the existence of an Unrestricted Subsidiary under this Agreement, the Borrower shall notify Event of Default; (C) those assets as to which the Administrative Agent and the Borrower reasonably agree in writing that the costs of obtaining such perfection are excessive in relation to the value to the Lenders of such election not less than ten (10) Business Days prior the security to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder afforded thereby and (iiD) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryExcluded Account.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Repay Holdings Corp), Revolving Credit and Term Loan Agreement (Repay Holdings Corp)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party(other than an Excluded Subsidiary), whether pursuant to formation, acquisition Acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartySubsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties all fee ownership interests in all Real Estate with a fair market value in excess of such Subsidiary $7,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 45 days after the date any Person becomes a Subsidiary of a Loan PartySubsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) If, at any time and from time to time after the Closing Date, Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in the definition of “Immaterial Subsidiary” comprise in the aggregate more than 5.0% of Consolidated Total Assets or more than 5.0% of Consolidated EBITDA, in each case, as of the end of the most recently ended Fiscal Quarter for which financial statements have been delivered (or were required to be delivered) pursuant to Section 5.1(b), then the Borrower shall, not later than five (5) Business Days after the date by which financial statements for such Fiscal Quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Subsidiaries as no longer being an “Immaterial Subsidiary” (to the extent that, as a result of such designation, the remaining Immaterial Subsidiaries constitute less than each of the thresholds set forth in this subsection (d) in the aggregate) and (ii) comply with the provisions of subsection (a) of this Section applicable to each such Subsidiary (subject to the time periods set forth in this Section 5.12 which shall run from the date that any Subsidiary is so designated as no longer being an Immaterial Subsidiary hereunder).
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Apollo Medical Holdings, Inc.), Credit Agreement (Apollo Medical Holdings, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of that is a Loan PartyMaterial Subsidiary (excluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”), whether pursuant to formation, acquisition or otherwise, otherwise (including if any Domestic Subsidiary ceases to qualify as an Immaterial Subsidiary or is the subject of an Excluded Subsidiary Revocation) (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition thereof and of any Material Real Estate owned by such Subsidiary Joining Guarantor and (y) within five 60 days (5or such longer period as may be agreed to by the Administrative Agent in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyJoining Guarantor, the Borrower shall cause such Subsidiary Joining Guarantor (iA) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) [Reserved], and (D) to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord, within five an Ensign Landlord or a landlord under a Material Master Lease), in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. In addition, subject to Section 5.13(b), if a Mortgage Trigger Event has occurred prior to such Joining Guarantor becoming a Loan Party, within 60 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Joining Guarantor becomes a Loan Party, the Borrower shall cause such Joining Guarantor to execute and deliver to the Administrative Agent, with respect to all Material Real Estate owned by such Loan Party, such Real Estate Documents as the Administrative Agent shall require; provided that no owned Real Estate shall be taken as Collateral unless (i) the Administrative Agent and all Lenders have received at least 45 days advance written notice (which may be provided via email or via posting on any datasite to which the Lenders have access) thereof and (ii) each Lender has notified the Administrative Agent in writing (which notice may be provided via email) that such Lender has completed its flood insurance due diligence and compliance procedures.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Subsidiary that is a Pass-Through Foreign Holdco (in each case, other any Excluded Subsidiary or Immaterial Subsidiary) that is directly owned by a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) within 60 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Person becomes a Foreign Subsidiary or a Pass-Through Foreign Holdco, as applicable, the Borrower shall, or shall cause the applicable Loan Parties to (i) pledge all of the Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) or (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary (other than, to the extent not required to become a “Guarantor” (or equivalent term) under the Term Loan Documents and all Xxxx Xxxx Debt Documents, (a) any Insurance Subsidiary, (b) any Subsidiary of an Insurance Subsidiary, (c) any other Subsidiary of the Issuer that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, (d) any Foreign Subsidiary or Subsidiary of a Loan PartyForeign Subsidiary or (e) any FSHCO or Subsidiary of any FSHCO), whether pursuant to formation, acquisition or otherwise, (x) the Borrower Issuer shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary Noteholders thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan Party(or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower Issuer shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Note Documents, (ii) to grant Liens in favor of the Administrative Agent in all interests in Real Estate (other than Excluded Property) to the proved Oil and Gas Properties of such Subsidiary extent required by Section 5.13 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Note Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a direct Subsidiary of a Loan PartyNote Party (or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower Issuer shall, or shall cause the applicable Loan Note Party to (i) pledge all of the Capital Stock of such Subsidiary directly owned by a Note Party (other than Excluded Property) to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative AgentAgent and the Required Noteholders, and (ii) if subject to the Capital Stock of such Subsidiary is certificatedIntercreditor Agreement and/or any applicable Market Intercreditor Agreement, deliver the original certificates evidencing such pledged Capital Stock (other than Excluded Property) to the Administrative Agent, together with appropriate powers executed in blank; provided, that if such Person that becomes an Insurance Subsidiary, a Subsidiary of an Insurance Subsidiary or any other Subsidiary of the Issuer that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, this requirement to pledge all of the Capital Stock of such Person shall not apply only to the extent the pledge thereof is (or would be) deemed a change of control of such Person or is (or would be) otherwise prohibited by applicable law or regulations. For the avoidance of doubt, (x) to the extent not required to become a “Guarantor” (or equivalent term) under the Term Loan Documents and all Xxxx Xxxx Debt Documents, in no event shall (a) any Insurance Subsidiary, (b) any Subsidiary of an Insurance Subsidiary, (c) any other Subsidiary of the Issuer that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License (it being understood and agreed that until such approval is obtained, such Subsidiary shall not transact any business or hold any material assets), (d) any Foreign Subsidiary or Subsidiary of a Foreign Subsidiary or (e) any FSHCO or Subsidiary of any FSHCO be required to become a Subsidiary Note Party, a Note Party or a Guarantor hereunder; however, for the avoidance of doubt, each Person described in clauses (a) through (e) shall be subject to the applicable covenants contained herein and (y) so long as required under any Term Loan Documents or Xxxx Xxxx Debt Documents, subject to Section 5.16(a), the Capital Stock of RRC shall be pledged and perfected under the laws of Cayman Islands (to the extent not prohibited thereunder).
(b) The Borrower Subject to the Intercreditor Agreement and/or any applicable Market Intercreditor Agreement, the Issuer agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.by
Appears in 2 contracts
Samples: Note Purchase Agreement (Root, Inc.), Note Purchase Agreement (Root Stockholdings, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of a any Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Domestic Subsidiary of that is a Loan PartyRestricted Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, a Patent Security Agreement and a Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all fee interests in Real Estate with an individual value exceeding $2,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Domestic Subsidiary of a any Loan PartyParty or any of its Subsidiary Loan Parties, the Borrower applicable Loan Party shall, or shall cause the applicable Subsidiary Loan Party to to, (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party or any Subsidiary Loan Party that is a U.S. Person, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the applicable Loan Party shall, or shall cause the applicable Subsidiary Loan Party to, (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank, and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Arc Logistics Partners LP), Revolving Credit Agreement (Arc Logistics Partners LP)
Additional Subsidiaries and Collateral. (a) Any newly acquired At the time any Subsidiary of Borrowerany Obligor is created or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance acquired, with the terms consent of Section 5.12(c). In the event thatRequired Lenders or in connection with a Permitted Acquisition, subsequent to after the Closing ClosingConsolidated Amendment Date, any Person becomes a Subsidiary the BorrowerObligors shall (i) in the case of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become join as a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing execute and delivering deliver to the Administrative Agent a supplement duly executed joinder to the Guaranty Agreement, the Pledge Agreement and the Security Agreement in form and substance reasonably satisfactory to the Administrative AgentAgreement, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) in the case of a Foreign Subsidiary owned by the BorrowerObligors or a Domestic Subsidiary, deliver to grant Liens in favor the Agent a pledge of 65% of the Administrative Agent in the proved Oil and Gas Properties Voting Securities of such Subsidiary by executing and delivering Subsidiary, together with, in each case such other Credit Documents as the Agent may reasonably request, with such changes as the Agent may reasonably request, together with resolutions, favorable legal opinions addressed to the Administrative Agent such Mortgagesand Lenders, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if such other documents and closing certificates, in each case as may be reasonably requested by the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees thatPromptly upon any Obligor acquiring any asset, following tangible or intangible, or other property (real or personal) (it being agreed that all assets of PAMT shall be deemed to be acquired on the due execution and delivery Consolidated Amendment Date) in which a security interest or mortgage is not already granted to the Agent on behalf of the Collateral Documents required Secured Parties, provide notice thereof to the Agent and, in the case of a lease (it being agreed that all leases to which PAMT is a party shall be deemed to have been entered into on the Consolidated Amendment Date), make commercially reasonable efforts to obtain a Landlord Waiver, or, cause to be executed such additional security documents, other documents and delivered closing certificates as may be reasonably requested by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, Agent or required by the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative AgentSecurity Agreement.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Parametric Sound Corp), Credit Agreement (Parametric Sound Corp)
Additional Subsidiaries and Collateral. Subject in all respects to the definition of Excluded Assets and Excluded Perfections,
(a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyRestricted Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days after such Person becomes a Restricted Subsidiary (subject to extension in the sole discretion of a Loan Partythe Administrative Agent), the Borrower shall cause any such Restricted Subsidiary (i) that is not a Foreign Subsidiary to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC UCC-1 financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five thirty (530) Business Days days after the date any Person becomes a Restricted Subsidiary (subject to extension in the sole discretion of a Loan Partythe Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Restricted Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.;
(b) The in the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary (subject to extension in the sole discretion of the Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the Foreign Subsidiary is a CFC, 65% of the voting Capital Stock and 100% of the non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request;
(c) in the event that, subsequent to the Closing Date, the Borrower or any Loan Party shall acquire (x) the Capital Stock of an Affiliate Fund or a Subsidiary of an Affiliate Fund or (y) any Real Estate from an Affiliate Fund or a Subsidiary of an Affiliate Fund, the Borrower shall, or shall cause the relevant Loan Party to, substantially contemporaneously with the consummation of such Permitted Acquisition (or such later period as the Administrative Agent shall agree), deliver to the Administrative Agent, each of the following documents, each either substantially similar in form and substance to the form of documents delivered connection with the Formation Transactions, or reasonably satisfactory to the Administrative Agent:
(i) a counterpart of an Amendment Agreement duly executed by or on behalf of each party thereto;
(ii) an assignment agreement, in form and substance substantially similar to the Fund A Assignment or otherwise reasonably acceptable to the Administrative Agent, assigning any loans of such Affiliate Fund or Subsidiary of such Affiliate Fund to the Administrative Agent for the benefit of the Lenders, duly executed and delivered by or on behalf of the applicable parties thereto;
(iii) an Omnibus Mortgage Amendment with respect to the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition, duly executed and delivered by or on behalf of the applicable parties thereto;
(iv) Mortgage Assignments with respect to the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition in form and substance substantially similar to the Fund A Mortgage Assignment or otherwise reasonably acceptable to the Administrative Agent, duly executed and delivered by or on behalf of the applicable parties thereto;
(v) upon the request of the Administrative Agent, an Assignment Endorsement and a Modification Endorsement to one existing title insurance policy, selected by the Administrative Agent in its sole discretion, in each state in which any Mortgaged Property under the Assigned Existing Mortgages being assigned to the Administrative Agent in connection with the applicable Permitted Acquisition is located (including, at the request of the Administrative Agent, in any Covered State), insuring that the Assigned Existing Mortgage covered thereby, as amended by the applicable Omnibus Mortgage Amendment, grants valid and enforceable mortgage Liens in favor of the Administrative Agent on the Mortgaged Property covered by such Assigned Existing Mortgage; provided that with respect to any Mortgaged Property in any Covered State, the Administrative Agent shall not make any such requests if an Assignment Endorsement and Modification Endorsement has been delivered with respect to such Covered State during the twelve-month period prior to such Permitted Acquisition; provided further, that notwithstanding the foregoing proviso, the Administrative Agent may make any such requests if it reasonably believes that a Change in Law has occurred such that the Mortgages in such Covered State that are being assigned in connection with the applicable Acquisition, as modified by the existing form of Omnibus Mortgage Amendment, may not be effective to grant a mortgage Lien in such Covered State to the Secured Parties securing the Obligations in the amount of (A) $390,000,000 or (B) with respect to Covered States where a mortgage recording tax was paid based on the secured amount in an Existing Mortgage prior to the assignment of such Existing Mortgage to the Administrative Agent in connection with the applicable Permitted Acquisition, the secured amount in such applicable Existing Mortgage. For the avoidance of doubt, with respect to any Existing Mortgage to which clause (B) above applies, once such Existing Mortgage is assigned to the Administrative Agent hereunder and modified by the existing form of Omnibus Mortgage Amendment, the secured amount therein will remain the same as in such Existing Mortgage prior to the assignment and modification thereof;
(vi) access to digital copies of any existing Phase I Environmental Site Assessment Reports that such Affiliate Fund or Subsidiary of an Affiliate Fund has and that cover properties subject to any Existing Mortgage with respect to the applicable Permitted Acquisition;
(vii) to the extent not covered by the assignment delivered pursuant to subsection (ii) above, copies of the duly executed payoff letters or assignments of existing debt in connection with the applicable Permitted Acquisition, executed by the administrative agent under the applicable existing credit agreement being assigned in connection with the applicable Permitted Acquisition, together with (a) UCC-3 assignments or other appropriate termination statements, either assigning or releasing all liens of the applicable existing lenders upon any of the personal property of the applicable Affiliate Fund or its Subsidiaries, (b) assignments, cancellations or releases, assigning or releasing all liens of the applicable existing lenders upon any of the real property of the applicable Affiliate Fund or its Subsidiaries, and (c) any other assignments, releases, terminations or other documents reasonably required by the Administrative Agent to evidence the assignment of the applicable existing debt; and
(d) the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the UCC or UCC-1 financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Landmark Infrastructure Partners LP), Credit Agreement (Landmark Infrastructure Partners LP)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person (including the PBM Strategic Joint Venture, but specifically excluding any Specified Strategic Joint Venture) becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent shall agree in writing) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property that is not Excluded Property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in all fee ownership interests in Real Estate having a fair market value in excess of $5,000,000 as of the proved Oil and Gas Properties of date such Person becomes a Domestic Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (to the extent that such Capital Stock is certificated) to the Administrative Agent, together with appropriate powers executed in blank, in each case, other than any such Capital Stock that constitutes Excluded Property.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (i) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (ii) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary (or such longer period as the Administrative Agent shall agree in writing), the Borrower shall, or shall cause the applicable Loan Party to, (A) pledge not more than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (B) deliver the original certificates evidencing such pledged Capital Stock (to the extent that such Capital Stock or portion thereof is certificated) to the Administrative Agent, together with appropriate powers executed in blank and (C) deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien (subject to Specified Permitted Liens) on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or by filing UCC financing statements, or by taking actual possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (BioScrip, Inc.), Priming Credit Agreement (BioScrip, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Tengasco Inc), Credit Agreement (Riley Exploration - Permian, LLC)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with Within twenty days after the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, time that any Person becomes a Material Domestic Subsidiary as a result of the creation of such Material Domestic Subsidiary, an acquisition, or otherwise, then, unless such Material Domestic Subsidiary is merged into the Borrower (with the Borrower being the surviving Person) prior to the expiration of such twenty day period, (a) 100% of such Material Domestic Subsidiary’s Equity Interests shall be pledged to secure the Obligations, and (b) the Administrative Agent shall receive such board resolutions, officer’s certificates, corporate and other documents and opinions of counsel as the Administrative Agent shall reasonably request in connection with such pledge. Within forty-five days after the time that any Person becomes a Loan PartyMaterial Foreign Subsidiary as a result of the creation of such Material Foreign Subsidiary, whether pursuant to formation, an acquisition or otherwise, (xa) 65% of such Material Foreign Subsidiary’s Equity Interests shall be pledged to secure the Borrower shall notify Obligations, and (b) the Administrative Agent shall receive such board resolutions, officer’s certificates, corporate and other documents and opinions of counsel as the Lenders not less than ten (10) Business Days prior to Administrative Agent shall reasonably request in connection with such pledge; provided, however, that if a pledge of the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary Equity Interests of a Loan PartyMaterial Foreign Subsidiary would result in adverse tax consequences, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor may provide an opinion of the Administrative Agent in all of its personal property by executing and delivering counsel acceptable to the Administrative Agent a supplement to addressing such adverse tax consequences and, upon the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request consent of the Administrative AgentRequired Lenders (such consent not to be unreasonably withheld), such UCC financing statements pledge shall not be required. Provided further, that if a Material Domestic Subsidiary or similar instruments required by Material Foreign Subsidiary is a Subsidiary of an entity which is already the Administrative Agent to perfect the Liens subject of a pledge in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) such Material Domestic Subsidiary or Material Foreign Subsidiary need not be so pledged. Notwithstanding the foregoing, in no event shall any Broker Dealer Subsidiary be required to grant Liens in favor be a Guarantor or a pledgor. In the event that a Subsidiary Guarantees the obligations of the Administrative Agent in Borrower under the proved Oil and Gas Properties of 2017 Senior Notes, such Subsidiary by executing and delivering to the Administrative Agent such Mortgagesshall also become a Guarantor. In addition, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or any Subsidiary or Affiliate thereof shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent any assets as security collateral for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense obligations of the Borrower or under the applicable 2017 Senior Notes, such collateral shall also be pledged as collateral under the Loan Party, and shall be taken to the reasonable satisfaction of the Administrative AgentDocuments.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Penson Worldwide Inc), Credit Agreement (Penson Worldwide Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a wholly-owned Material Subsidiary of the Borrower (including any Material Subsidiary that is not wholly-owned solely as a Loan Partyresult of directors’ qualifying shares required by applicable law), whether pursuant to formation, acquisition or otherwiseotherwise (including any Immaterial Subsidiaries that cease to qualify as Immaterial Subsidiaries), (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five sixty (560) Business Days days after such Person becomes a wholly-owned Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent), the Borrower shall cause such Subsidiary (i) to become a new Guarantor (unless such Subsidiary (1) is a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor, (2) is prohibited by law from becoming a Guarantor, (3) is a Subsidiary of a Foreign Subsidiary that is not required to be a Guarantor or (4) the primary assets of such Subsidiary are Capital Stock or Indebtedness of a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor) and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents; provided, that no Domestic Loan Party shall be required to take any action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest in any assets of the Borrower or Loan Party which assets are either located outside of the United States or would require action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest therein and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) reasonably requested by Administrative Agent and consistent with the documents delivered by the Loan Parties on or prior to take all such other actions as such Subsidiary would have been required to deliver and take the Closing Date pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties4.01(a)(iii). In addition, within five sixty (560) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan PartyParty (or such later date as agreed to by the Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (if any) to the Administrative Agent, together with appropriate powers executed in blank; provided that in no event shall any Capital Stock of any non-wholly owned Domestic Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock, if any, to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request provided, that Liens on the Capital Stock of (or other ownership interest in) a Foreign Subsidiary that are required to be pledged shall be documented under U.S. law; provided, further that in no event shall any Capital Stock of any non-wholly owned Foreign Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.13 or otherwise in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, and granted under any of the Loan Documents, provided that no Domestic Subsidiary that is a CFC Holdo shall be required to become a Guarantor hereunder,
(iib) to grant Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, in the proved Oil and Gas Properties all fee ownership interests in Real Estate with a value in excess of such Subsidiary $2,000,000 per individual property by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate with a value in excess of $2,000,000 per individual property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank.
(c) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary is (provided that, the pledge of the voting Capital Stock of such Foreign Subsidiary shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Administrative Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(bd) No Foreign Subsidiary shall be required to become a Guarantor or grant any Lien pursuant to Section 5.13(a).
(e) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (ai) Any newly At such time as any Subsidiary of the Company is created or acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to after the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant cause to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent be executed and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering delivered to the Administrative Agent (A) a supplement to Joinder Agreement such that such Subsidiary shall become a Borrower hereunder, a grantor under the Guaranty and Security Agreement and an issuer under the Pledge Agreement (and, if applicable, the parent of such Subsidiary shall become a pledgor under the Pledge Agreement), (B) subject to clause (ii) below, such other applicable Security Documents in form and substance reasonably satisfactory to the Administrative AgentAgent such that the assets of such Subsidiary shall become Collateral for the Obligations, and authorizing and delivering, at the request of (C) favorable legal opinions addressed to the Administrative Agent, Agent and Lenders in form and substance satisfactory thereto with respect to such UCC financing statements or similar instruments required supplements and agreements and (D) such other documents and closing certificates as consistent with Article VI as may be requested by the Administrative Agent and (ii) within sixty (60) days after the joinder of such Subsidiary, a Mortgage for each parcel of real property owned or leased thereby.
(b) Within sixty (60) days of the consummation by the Company or any Subsidiary of any lease (including without limitation in connection with any assignment or assumption of an existing lease to perfect the Liens in favor of or by a new landlord) with respect to real property at which any Switch or any material Telecommunications Equipment is or is to be located, cause to be executed and delivered to the Administrative Agent and granted under any (i) a copy of the Loan Documentslease and all related documents, (ii) a Mortgage with respect to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgagesproperty, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports a landlord consent and, if requested by the Administrative Agentapplicable, legal opinionsa mortgagee estoppel letter (and, in addition, within sixty (60) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been days of any refinancing of any Mortgage with a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 new lender, an additional mortgagee estoppel letter) with respect to any proved Oil and Gas Properties. In additionsuch property, within five (5iv) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all legal description of the Capital Stock premises, (v) any filings or recordings necessary to perfect the security interests of the Lenders in all Collateral related to such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement premises, (vi) UCC-1 Financing Statements in form and substance satisfactory to the Administrative Agent, Agent with respect to such premises and (iivii) if favorable opinions of counsel to the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock Company addressed to the Administrative AgentAgent and the Lenders in form and substance satisfactory thereto with respect to such security interests and each additional document, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery instrument or other item of the Collateral Documents required to be executed and delivered information reasonably requested by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In connection with the event thatexecution by the Company or any Subsidiary of any Interconnection Agreement, subsequent use their reasonable best efforts to cause to be executed and delivered to the Administrative Agent at the time such Interconnection Agreement is entered into (or as soon as reasonably practicable thereafter, or with respect to any such agreement that is in effect on the Closing Date, any Person becomes as soon as reasonably practicable after such date), a subsidiary consent agreement regarding the Lien of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent in form and substance reasonably satisfactory thereto and each additional document, instrument or other item of information reasonably requested by the Lenders of Administrative Agent.
(d) Promptly deliver from time to time such election not less than ten (10) Business Days prior additional Security Documents to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein upon the request of the Required Lenders with respect to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes assets of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee such Person not subject to an existing Lien in favor of the obligations thereunder Administrative Agent for the ratable benefit of itself and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary As a condition to the inclusion of any Borrowing Base Property in the Borrowing Base Value, the REIT Guarantor and the Borrower or a shall (a) cause (i) the Subsidiary that owns such Borrowing Base Property (which shall be deemed a Person organized under the laws of any state of the United States or the District of Columbia) to become a Guarantor hereunder and a party to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement and (ii) each Subsidiary that is not a Loan Party that owns, directly or indirectly, any Capital Stock of any Subsidiary which becomes a Guarantor pursuant to clause (i) above to become a Guarantor hereunder and a party to the Guaranty and Security Agreement and to xxxxx x Xxxx in such Capital Stock pursuant to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement (provided that, unless designated such Subsidiary owns a Borrowing Base Property, it shall not be required to xxxxx x Xxxx on, or security interest in, any of its assets or property other than any such Capital Stock of other Subsidiary Loan Parties), in each case on or before the date on which a Property owned by Borrower any such Subsidiary is initially included as an Unrestricted a Borrowing Base Property; and (b) cause each such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in accordance connection with the terms foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of Section 5.12(csuch Subsidiary, favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner). In , all of which shall be reasonably satisfactory to the event that, subsequent to Administrative Agent.
(b) Within 15 Business Days of any Person (other than an Excluded Subsidiary) becoming a Material Subsidiary after the Closing Date, and within 15 Business Days of any Person becomes Excluded Subsidiary that was a Material Subsidiary of ceasing to be subject to the restriction which prevented it from becoming a Loan PartyGuarantor as otherwise required under this Agreement, whether pursuant to formation, acquisition or otherwise, (x) the REIT Guarantor and the Borrower shall notify (i) cause such Subsidiary to become a Guarantor hereunder through the execution and delivery to the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary a Joinder Agreement and (yii) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of such Subsidiary, favorable opinions of counsel to such Subsidiary (iwhich shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner), all of which shall be reasonably satisfactory to the Administrative Agent.
(c) The Borrower may, at its option, cause any Subsidiary that is not already a Guarantor to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement Joinder Agreement and the other items required to be delivered under the Guaranty immediately preceding clauses (a) and Security Agreement (b), as applicable.
(d) Notwithstanding the foregoing, no Subsidiary may become a Guarantor in form and substance reasonably satisfactory to accordance with the Administrative Agent, and authorizing and delivering, at the request terms of this Section unless (i) such Subsidiary is a Subsidiary of the Administrative Agent, Borrower and (ii) the Lenders have received from the Borrower any such UCC financing statements or similar instruments required documentation and other information requested by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under or any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take Lender pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be 10.13 at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) least three Business Days prior to the formation or acquisition proposed effectiveness of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein Subsidiary’s agreement to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is become a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryGuarantor.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of that is a Loan PartyMaterial Subsidiary (excluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”), whether pursuant to formation, acquisition or otherwise, otherwise (including if any Domestic Subsidiary ceases to qualify as an Immaterial Subsidiary or is the subject of an Excluded Subsidiary Revocation) (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition thereof and of any Material Real Estate owned by such Subsidiary Joining Guarantor and (y) within five 60 days (5or such longer period as may be agreed to by the Administrative Agent in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyJoining Guarantor, the Borrower shall cause such Subsidiary Joining Guarantor (iA) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11, and (D) to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord, within five an Ensign Landlord or a landlord under a Material Master Lease), in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. In addition, subject to Section 5.13(b), if a Mortgage Trigger Event has occurred prior to such Joining Guarantor becoming a Loan Party, within 60 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Joining Guarantor becomes a Loan Party, the Borrower shall cause such Joining Guarantor to execute and deliver to the Administrative Agent, with respect to all Material Real Estate owned by such Loan Party, such Real Estate Documents as the Administrative Agent shall require; provided that no owned Real Estate shall be taken as Collateral unless (i) the Administrative Agent and all Lenders have received at least 45 days advance written notice (which may be provided via email or via posting on any datasite to which the Lenders have access) thereof and (ii) each Lender has notified the Administrative Agent in writing (which notice may be provided via email) that such Lender has completed its flood insurance due diligence and compliance procedures.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of Foreign Subsidiary or a Subsidiary that is a Pass-Through Foreign Holdco (in each case, other any Excluded Subsidiary or Immaterial Subsidiary) that is directly owned by a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders of such election not less than ten thereof and (10y) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary within 60 days (or such shorter longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Person becomes a Foreign Subsidiary or a Pass-Through Foreign Holdco, as applicable, the Borrower shall, or shall cause the applicable Loan Parties to (i) pledge all of time the Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein reasonably request.
(c) The Borrower agrees that, following the delivery of any Collateral Documents required to be executed and delivered by this Section, the Administrative Agent shall have a valid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsections (a) or (b) of this Section (to the contraryextent that such Lien can be perfected by execution, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.delivery and/or
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Within 75 days after the end of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms second Fiscal Quarter of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary each Fiscal Year of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify (or, if the Administrative Agent and determines in its sole discretion that the Lenders Borrower is working in good faith, such longer period as the Administrative Agent shall permit not less than ten (10) Business Days prior to exceed 60 additional days), commencing with the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party2017 Fiscal Year, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with US-DOCS\51545218.9 Section 5.11, and (D) to deliver pursuant to Section 5.13 Real Estate Documents with respect to owned Material Real Estate and Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord or a landlord under a Material Master Lease), within five in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) Within 75 days after the end of the second Fiscal Quarter of each Fiscal Year of the Borrower (or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days), commencing with the 2017 Fiscal Year, the Borrower shall (i) cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) If (i) the Leverage Ratio for the four consecutive Fiscal Quarter period ending on the end of any Fiscal Quarter, commencing with the Fiscal Quarter ending on or about December 31, 2016, is greater than 1.50:1.00 and (ii) as of the end of such Fiscal Quarter either (x) the aggregate assets of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 20.0% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of such date or (y) the aggregate revenues of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 10.0% of the total revenues of the Borrower and its Subsidiaries on a consolidated basis as of such date (such percentages in clauses (x) and (y), the “Threshold Amounts”), then within 75 days after the end of such Fiscal Quarter (or with respect to the fourth Fiscal Quarter of each Fiscal Year, then within 120 days after the end of such Fiscal Quarter), the Borrower shall cause one or more of such Domestic Subsidiaries that is at such time not a Subsidiary Loan Party to become an additional Subsidiary Loan Party to the extent necessary to cause the aggregate assets and the aggregate revenue of all Subsidiaries of the Borrower that are not Subsidiary Loan Parties at such time (other than Excluded Subsidiaries and Specified Subsidiaries) to be no greater than the Threshold Amounts, by executing and delivering the documents and taking the actions described in subsection (a) above as if such Domestic Subsidiaries were Joining Guarantors.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the US-DOCS\51545218.9 Collateral Documents or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, (i) any Person becomes Restricted Subsidiary (other than an Excluded Subsidiary) is formed or acquired (including by Division), (ii) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, (iii) any Restricted Subsidiary ceases to be an Excluded Subsidiary or (iv) the Borrower, at its option, elects to cause a Domestic Subsidiary to become a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 60 days (5or such longer period as the Administrative Agent agrees) Business Days after such Person becomes Restricted Subsidiary is formed or acquired, such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, such Restricted Subsidiary of a Loan Partyceases to be an Excluded Subsidiary or the Borrower has made such election, as applicable, the Borrower shall cause such Restricted Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to the extent required, to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in fee owned Real Estate (subject to Permitted Encumbrances) by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Restricted Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Restricted Subsidiary had been a Loan Party on the Closing Date or that such Restricted Subsidiary would be required to deliver pursuant to Section 5.13 5.11 with respect to any proved Oil and Gas Propertiesfee owned Real Estate; provided, however, no Foreign Subsidiary shall be required to become a Guarantor or grant Liens in its personal property or fee owned Real Estate. In addition, within five 30 days (5or such longer period as the Administrative Agent agrees) Business Days after the date any Person becomes a Subsidiary of a Loan PartyRestricted Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Restricted Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) [reserved].
(c) The Borrower shall and shall cause its Restricted Subsidiaries, to furnish to the Administrative Agent within 20 days of such event (or such later date as the Administrative Agent may agree in its sole discretion) written notice of any change in any Loan Party’s: (i) legal name; (ii) type of organization; (iii) location (determined as provided in UCC Section 9-307); or (iv) jurisdiction of organization. The Borrower shall not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the UCC or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral held by such Loan Party.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall the provisions of this Section 5.10 need not be satisfied with respect to any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Guaranty and Security Agreement or any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiaryother applicable Collateral Document.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, on or subsequent to the Closing Restatement Date, any Person becomes a Domestic Subsidiary of a Loan Party(including pursuant to the Ocean Acquisition) or an Excluded Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, (xi) the Borrower shall promptly notify the Administrative Collateral Agent and the Lenders not less than ten thereof, (10) Business Days prior to the formation or acquisition of such Subsidiary and (yii) within five thirty (530) Business Days days after such Person becomes a Domestic Subsidiary of a Loan Partyor such Person ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall cause such Domestic Subsidiary (iother than an Excluded Subsidiary) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property that would otherwise constitute Collateral by executing and delivering to the Administrative Collateral Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.12 or otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent, and authorizing and delivering, at the request of the Administrative Collateral Agent, such UCC financing statements or similar instruments required by the Administrative Collateral Agent to perfect the Liens in favor of the Administrative Agent Collateral Agent, for the benefit of Secured Parties, and granted under any of the Loan Documents, (ii) ; provided that no Domestic Subsidiary that is a CFC Holdco shall be required to become a Guarantor hereunder or grant Liens in favor or otherwise pledge any of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, its assets as Collateral hereunder or under any other Loan Document and (iii) within sixty (60) days after such Person becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if searches and requested by the Administrative Agent, legal opinionsReal Estate Documents) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Restatement Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesMaterial Real Property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan Partyor an Excluded Subsidiary ceases to be an Excluded Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Collateral Agent in form and substance reasonably satisfactory to the Administrative Collateral Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) if to the Capital Stock of such Subsidiary is extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Collateral Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank. Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any Material Real Property of a Person that becomes a Domestic Subsidiary after the Restatement Date whether pursuant to formation, acquisition or otherwise, until (1) the date that occurs forty-five (45) days after the Collateral Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice, and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Material Real Property is located, evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents” and (2) the Collateral Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance have been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed); provided that the Collateral Agent may enter into any such Mortgage prior to the notice period specified above upon receipt of the written confirmation described in clause (2) above and provided further that the Borrower’s obligations under Section 5.12(a) to grant a Mortgage of any Material Real Property within the 60-day time period described herein shall be extended for so long as is required to ensure compliance with the requirements of clause (2) above.
(b) In the event that, on or subsequent to the Restatement Date, any Person becomes a Foreign Subsidiary (including pursuant to the Ocean Acquisition) or a Foreign Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Collateral Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Collateral Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Collateral Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Collateral Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Collateral Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Collateral Agent may reasonably request.
(bc) No Foreign Subsidiary that is a CFC shall be required to become a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.12(a) or under any other Loan Document.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Collateral Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Collateral Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, (i) any Person becomes Restricted Subsidiary (other than an Excluded Subsidiary) is formed or acquired (including by Division), (ii) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, (iii) any Restricted Subsidiary ceases to be an Excluded Subsidiary or (iv) the Borrower, at its option, elects to cause a Domestic Subsidiary to become a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 60 days (5or such longer period as the Administrative Agent agrees) Business Days after such Person becomes Restricted Subsidiary is formed or acquired, such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, such Restricted Subsidiary of a Loan Partyceases to be an Excluded Subsidiary or the Borrower has made such election, as applicable, the Borrower shall cause such Restricted Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to the extent required, to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in fee owned Real Estate (subject to Permitted Encumbrances) by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Restricted Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Restricted Subsidiary had been a Loan Party on the Closing Date or that such Restricted Subsidiary would be required to deliver pursuant to Section 5.13 5.11 with respect to any proved Oil and Gas Propertiesfee owned Real Estate; provided, however, no Foreign Subsidiary shall be required to become a Guarantor or grant Liens in its personal property or fee owned Real Estate. In addition, within five 30 days (5or such longer period as the Administrative Agent agrees) Business Days after the date any Person becomes a Subsidiary of a Loan PartyRestricted Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.such
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent[reserved].
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the The Borrower shall notify and shall cause its Restricted Subsidiaries, to furnish to the Administrative Agent and the Lenders within 20 days of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary event (or such shorter period of time later date as the Administrative Agent may permit agree in its sole discretion). Notwithstanding anything herein to the contrary, ) written notice of any change in any Loan Party’s: (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and legal name; (ii) the Borrower shall not designate any Subsidiary type of organization; (iii) location (determined as an Unrestricted Subsidiary.provided in UCC Section 9-307); or (iv)
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person (including the PBM Strategic Joint Venture, but specifically excluding any Specified Strategic Joint Venture) becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent shall agree in writing) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property that is not Excluded Property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in all fee ownership interests in Real Estate having a fair market value in excess of $5,000,000 as of the proved Oil and Gas Properties of date such Person becomes a Domestic Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (to the extent that such Capital Stock is certificated) to the Administrative Agent, together with appropriate powers executed in blank, in each case, other than any such Capital Stock that constitutes Excluded Property.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (i) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (ii) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary (or such longer period as the Administrative Agent shall agree in writing), the Borrower shall, or shall cause the applicable Loan Party to, (A) pledge not more than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (B) deliver the original certificates evidencing such pledged Capital Stock (to the extent that such Capital Stock or portion thereof is certificated) to the Administrative Agent, together with appropriate powers executed in blank and (C) deliver all such other customary and reasonable documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or by filing UCC financing statements, or by taking actual possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary As a condition to the inclusion of any Borrowing Base Asset in the Borrowing Base Amount, the REIT Guarantor and the Borrower or a shall (i) cause (x) the Subsidiary that owns such Borrowing Base Asset (which shall be deemed a Person organized under the laws of any state of the United States or the District of Columbia) to become a Guarantor hereunder and a party to the Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement and (y) each Subsidiary that is not a Loan Party that owns, directly or indirectly, any Capital Stock of any Subsidiary which becomes a guarantor pursuant to clause (x) above to become a Guarantor hereunder and a party to the Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement (provided that, unless designated such Subsidiary owns a Borrowing Base Asset, it shall not be required to xxxxx x Xxxx on, or security interest in, any of its assets or property other than any such Capital Stock of other Subsidiary Loan Parties), in each case under this clause (i), on or before the date on which a Real Property Asset owned by Borrower any such Subsidiary is initially included as an Unrestricted a Borrowing Base Asset pursuant to a Borrowing Base Certificate; and (ii) cause each such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of such Subsidiary, favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner), all of which shall be reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Subsidiary may become a Guarantor in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes this clause (a) unless (x) such Subsidiary is a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, the Borrower and (xy) the Lenders have received from the Borrower shall notify any such documentation and other information requested by the Administrative Agent and the Lenders not less than ten or any Lender pursuant to Section 10.14 at least three (103) Business Days prior to the formation or acquisition proposed effectiveness of such Subsidiary and Subsidiary’s agreement to become a Guarantor.
(yb) within five (5) Business Days after such Person becomes a Upon the acquisition, incorporation or other creation of any other direct or indirect Subsidiary of the REIT Guarantor if such Subsidiary is a Loan Partyguarantor or obligor with respect to any Indebtedness permitted pursuant to Section 7.1(c), the REIT Guarantor and the Borrower shall (i) cause such Subsidiary (iand each Subsidiary that is not a Loan Party that owns, directly or indirectly, any Capital Stock of any such Subsidiary) to become a new Guarantor hereunder (and if any such Subsidiary owns any Capital Stock of any other Subsidiary Loan Party become a party to grant Liens in favor of the Administrative Agent in all Security Agreement; provided that, unless such Subsidiary owns a Borrowing Base Asset, it shall not be required to xxxxx x Xxxx on, or security interest in, any of its personal assets or property by executing other than any such Capital Stock of other Subsidiary Loan Parties) through the execution and delivering delivery to the Administrative Agent of a supplement Joinder Agreement not later than the date such Subsidiary becomes a guarantor with respect to the Guaranty Senior Notes, and Security Agreement (ii) cause such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in form connection with the foregoing, including, without limitation, certified resolutions and substance other organizational and authorizing documents of such Subsidiary, favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner), all of which shall be reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.13 or otherwise in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, and granted under any of the Loan Documents, provided that no Domestic Subsidiary that is a CFC Holdco shall be required to become a Guarantor hereunder or grant Liens or otherwise pledge any of its assets as Collateral hereunder or under any other Loan Document.
(iib) to grant Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, in the proved Oil and Gas Properties all fee ownership interests in Real Estate with a value in excess of such Subsidiary $5,000,000 per individual property by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate with a value in excess of $5,000,000 per individual property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank.
(c) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Administrative Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(bd) No Foreign Subsidiary shall be required to become a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.13(a) or under any other Loan Document.
(e) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Restatement Date, any Person becomes a Domestic Subsidiary of Parent that is a Loan PartyMaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Parent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Subsidiary Parent shall:
(i) to cause such Domestic Subsidiary to:
(A) become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(B) execute, file with the United States Patent and Trademark Office and the United States Copyright Office (as applicable), and authorizing deliver a copy thereof to the Administrative Agent and deliveringits counsel (together with a confirmation of such filing) any applicable Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement;
(C) execute and deliver any Account Control Agreements (or amendments or supplements to any existing Account Control Agreements) required by Section 5.11;
(D) authorize and deliver, at the request of the Administrative Agent, such UCC financing statements or similar instruments reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, ; and
(iiE) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Domestic Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Domestic Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five Restatement Date; and
(5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to to:
(iA) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and ; and
(iiB) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The In the event that, subsequent to the Restatement Date, any Person becomes a Foreign Subsidiary which is a Material Subsidiary owned directly by any Loan Party, whether pursuant to formation, acquisition or otherwise, (x) Parent shall promptly notify the Administrative Agent and the Lenders thereof and (y) within 60 days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion) after such Person becomes a Foreign Subsidiary, Parent and the Borrower shall, or shall cause the applicable Loan Party to:
(i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to the lesser of (A) 100% of the issued and outstanding voting and non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party and (B) 66% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent;
(ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank; and
(iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) With respect to any Collateral acquired at any time after the Restatement Date by any Loan Party (other than any property described in paragraphs (a) or (b) above), each of Parent and the Borrower agrees that, within 30 days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion), it shall cause the applicable Loan Party to take all actions reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Collateral, including, without limitation, the following:
(i) execute, file with the United States Patent and Trademark Office and the United States Copyright Office (as applicable), and deliver a copy thereof to the Administrative Agent and its counsel (together with a confirmation of such filing) any applicable Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement; and
(ii) execute and deliver any Account Control Agreements (or amendments or supplements to any existing Account Control Agreements) required by Section 5.11.
(d) Each of Parent and the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan PartyParties, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Samples: Credit Agreement (LendingTree, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwiseotherwise (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided LLC), (x) the Borrower Loan Parties shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days (or such longer period as may be agreed in writing by the Administrative Agent in its discretion) after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Loan Parties shall cause such Domestic Subsidiary to (iA) to become a new Guarantor (and/or, if approved in writing by all of the Lenders that would be required to make Loans to or hold Loans of such Domestic Subsidiary, a Floor Plan Borrower) by executing and delivering to the Administrative Agent a Joinder Agreement or such other joinder documentation as is in form and substance reasonably satisfactory to the Administrative Agent, (B) grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (iiC) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties all ownership interests in Real Estate (other than Excluded Property) of such Domestic Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iiiD) to deliver all such other documentation and items (including, without limitation, including certified organizational documents, certificates of good standing and/or existence, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) and to take all such other actions as such Domestic Subsidiary would have been required to deliver and take pursuant to Section 3.1 Sections 5.1 and 5.2 if such Domestic Subsidiary had been a Loan Party on the Closing Date or that such Domestic Subsidiary would be required to deliver pursuant to Section 5.13 the terms hereof with respect to any proved Oil and Gas Properties. Real Estate.
(b) In additionthe event that, within five (5) Business Days after subsequent to the date Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Loan Parties shall promptly notify the Administrative Agent and the Lenders thereof, (y) to the extent such Foreign Subsidiary of a is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary (or such longer period as may be agreed in writing by the Borrower Administrative Agent in its discretion), the Loan Parties shall, or shall cause the applicable Loan Party to Subsidiary to, (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences to the Borrowers, then such pledge shall be limited to sixty-five percent (65%) of the issued and outstanding voting Capital Stock and one hundred percent (100%) of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent Agent, for the benefit of the Secured Parties, as security for the Obligations by executing and delivering a supplement pursuant to the Guaranty and Security Agreement Agreement, or such other pledge agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request and (z) within sixty (60) days (or such longer period as may be agreed in writing by the Administrative Agent in its discretion) after such Person becomes a Foreign Subsidiary, so long as no material adverse tax consequences would result to the Loan Parties or their Subsidiaries (as reasonably determined by the Loan Parties with the consent of the Administrative Agent), and in each case to the extent required or requested by the Administrative Agent, the Loan Parties shall cause such Foreign Subsidiary to (A) become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such other joinder documentation as is in form and substance reasonably satisfactory to the Administrative Agent, (B) grant Liens in favor of the Administrative Agent in such of its personal property (other than Excluded Property) as the Administrative Agent shall reasonably require by executing and delivering to the Administrative Agent security documents in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments (as applicable in any relevant jurisdiction) reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (C) grant Liens in favor of the Administrative Agent in all ownership interests in Real Estate (other than Excluded Property) of such Foreign Subsidiary as the Administrative Agent shall reasonably require by executing and delivering to the Administrative Agent such Real Estate Documents as the Administrative Agent shall reasonably require, and (D) deliver all such other documentation and items (including certified organizational documents, certificates of good standing and/or existence, resolutions, lien searches, title insurance policies, surveys, environmental reports, legal opinions and other customary items in the relevant jurisdiction) and take all such other actions as such Foreign Subsidiary would have been required to deliver and take pursuant to Sections 5.1 and 5.2 if such Foreign Subsidiary had been a Loan Party on the Closing Date or that such Foreign Subsidiary would be required to deliver pursuant to the terms hereof with respect to any Real Estate.
(bc) Notwithstanding the foregoing or anything else herein, LMP Newnan 001 Holdings, LLC, LMP Grande 001 Holdings, LLC, LMP Newnan, LLC and 601 NSR, LLC shall not be required to become Guarantors hereunder or otherwise comply with clause (a) of this Section 7.12 so long as they have no assets, revenue or operations (other than de minimis assets and, in the case of LMP Newnan 001 Holdings, LLC, its Equity Interests in LMP Newnan, LLC); it being understood that each of them shall be required to become Guarantors hereunder or otherwise comply with clause (a) of this Section 7.12 from and after the date that any of them has any assets, revenue or operations (other than de minimis assets and, in the case of LMP Newnan 001 Holdings, LLC, its Equity Interests in LMP Newnan, LLC), with the time period in such clause (a) running from such date.
(d) The Borrower agrees Loan Parties agree that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental officesSection 7.12, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection clauses (a) and (b) of this Section 7.12 (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.29.2. All actions to be taken pursuant to this Section 7.12 shall be at the expense of the Borrower or the applicable Loan PartyParties, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (xi) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (yii) within five thirty (530) Business Days days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.13 or otherwise in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, and granted under any of the Loan Documents, provided that no Domestic Subsidiary that is a CFC Holdco shall be required to become a Guarantor hereunder or grant Liens or otherwise pledge any of its assets as Collateral hereunder or under any other Loan Document.
(iib) to grant Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, in the proved Oil and Gas Properties all fee ownership interests in Real Estate with a value in excess of such Subsidiary $7,500,000 per individual property by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate with a value in excess of $7,500,000 per individual property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank.
(c) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Administrative Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(bd) No Foreign Subsidiary shall be required to become a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.13(a) or under any other Loan Document.
(e) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (ai) Any newly acquired or formed subsidiary Within thirty (30) days of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less creation of any newly-formed Subsidiary (other than ten (10an Inactive Subsidiary) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five the date that any Inactive Subsidiary ceases to qualify as an Inactive Subsidiary, and upon the acquisition of any Subsidiary permitted by Section 11.4(c) (5) Business Days after or such Person becomes a Subsidiary of a Loan Partyother date as may be specified in any consent executed pursuant to Section 11.4(c)), the Borrower shall cause such Subsidiary (i) to become a new Guarantor be executed and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering delivered to the Administrative Agent (A) a supplement to Joinder Agreement such that such Subsidiary shall become a Borrower hereunder, a grantor under the Guaranty and Security Agreement and an issuer under the Pledge Agreement (and, if applicable, the parent of such Subsidiary shall become a pledgor under the Pledge Agreement), (B) subject to clause (ii) below, such other applicable Security Documents in form and substance reasonably satisfactory to the Administrative AgentAgent such that the assets of such Subsidiary shall become Collateral for the Obligations, and authorizing and delivering, at the request of (C) favorable legal opinions addressed to the Administrative Agent, Agent and Lenders in form and substance satisfactory thereto with respect to such UCC financing statements or similar instruments required supplements and agreements and (D) such other documents and closing certificates as consistent with Article VI as may be requested by the Administrative Agent and (ii) within sixty (60) days after the joinder of such Subsidiary, a Mortgage for each parcel of real property owned or leased thereby at the time of such joinder; provided, that, with respect to perfect any real property acquired by the Liens -------- Company or any Borrower or in favor which the Company or any Borrower assumes a leasehold interest, in each case pursuant to the US Xchange Acquisition, the Company and the Borrowers shall have until the date that is ninety (90) days after the Closing Date to comply with the requirements of this Section 9.12.
(b) Within sixty (60) days of the consummation by the Company or any Subsidiary of any lease (including without limitation in connection with any assignment or assumption of an existing lease to or by a new landlord) with respect to real property at which any Switch or any material Telecommunications Equipment is or is to be located, cause to be executed and delivered to the Administrative Agent in form and granted under any substance satisfactory thereto (i) (A) a copy of the Loan Documentslease and all related documents, (B) a legal description of the premises, (C) a Mortgage with respect to such property, (D) a landlord consent and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions(A) a mortgagee estoppel letter, (B) UCC-1 Financing Statements and any additional filings or recordings or actions necessary to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on perfect the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all security interests of the Capital Stock Lenders in all Collateral related to such premises, (C) favorable opinions of such Subsidiary counsel to the Company addressed to the Administrative Agent as and the Lenders with respect to such Mortgages and security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, interests and (iiD) if the Capital Stock each additional document, instrument or other item of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered information reasonably requested by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In connection with the event thatexecution by the Company or any Subsidiary of any Interconnection Agreement, subsequent use their reasonable best efforts to cause to be executed and delivered to the Administrative Agent at the time such Interconnection Agreement is entered into (or as soon as reasonably practicable thereafter, or with respect to any such agreement that is in effect on the Closing Date, any Person becomes as soon as reasonably practicable after such date), a subsidiary consent agreement regarding the Lien of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent in form and substance reasonably satisfactory thereto and each additional document, instrument or other item of information reasonably requested by the Lenders of Administrative Agent.
(d) Promptly deliver from time to time such election not less than ten (10) Business Days prior additional Security Documents to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein upon the request of the Required Lenders with respect to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes assets of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee such Person not subject to an existing Lien in favor of the obligations thereunder Administrative Agent for the ratable benefit of itself and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of (other than an Excluded Subsidiary) or an Unrestricted Subsidiary is designated as a Loan PartyRestricted Subsidiary or an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 60 days (5or such longer period as the Administrative Agent may permit) Business Days after such Person becomes a Subsidiary of or is designated a Loan PartyRestricted Subsidiary or ceases to be an Immaterial Subsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor by executing and delivering to the Administrative Agent a joinder to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, Documents and (iii) to deliver all such other documentation (including, without limitation, certified organizational documentsOrganization Documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and customary legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 on the Closing Date if such Subsidiary had been a Loan Party on the Closing Date or that Date, in every such case to the extent reasonably requested by the Administrative Agent; provided, that, if the portion of Consolidated EBITDA attributable to any such Subsidiary would or Subsidiaries, individually or in the aggregate, is less than 10% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis), the Borrower shall not be required to deliver pursuant to any legal opinion under this Section 5.13 with respect to any proved Oil and Gas Properties5.12. In addition, within five 60 days (5or such longer period as the Administrative Agent may permit) Business Days after the date any Person becomes a Domestic Subsidiary of (other than a Domestic Foreign Holdco), to the extent such Domestic Subsidiary is owned directly by any Loan PartyParty and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), the Borrower shall, or shall cause the applicable Loan Party to shall (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Domestic Foreign Holdco, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof and (y) to the extent such Foreign Subsidiary or Domestic Foreign Holdco is owned directly by any Loan Party and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), within 60 days (or such longer period as the Administrative Agent may permit) after such Person becomes a Foreign Subsidiary or Domestic Foreign Holdco, the applicable Loan Party shall (i) pledge all of the Capital Stock (but, in any event, not to exceed 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock) of such Foreign Subsidiary or Domestic Foreign Holdco, as applicable, owned by such Loan Party, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority (subject to Liens permitted by Section 7.2) perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or, if required to be delivered, possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(cd) In the event that, subsequent Notwithstanding anything herein to the Closing Datecontrary or in any other Loan Document, (i) the Borrower and the Guarantors shall not be required create or perfect a security interest under the laws of any Person becomes non-U.S. jurisdiction or to create or perfect a subsidiary security interest in assets located or titled outside the U.S. or to reimburse or indemnify the Administrative Agent for any costs or expenses incurred in connection with the taking of any of the foregoing actions in any non-U.S. jurisdiction and (ii) perfection shall not be required with respect to the following: (A) commercial tort claims with a claim value of less than $7,500,000; (B) letter-of-credit rights with a face amount less than $7,500,000 (other than those to which perfection of the security interest in such Collateral is accomplished solely by the filing of a Loan Party, whether pursuant to formation, acquisition or otherwise, and UCC financing statement); provided that neither the Borrower elects for such Person nor any Guarantor shall be required to become establish the Administrative Agent’s “control” (within the meaning of Section 9-107 of the UCC) over any letter-of-credit rights with a face amount greater than or equal to $7,500,000 except upon the Administrative Agent’s request during the existence of an Unrestricted Subsidiary under this Agreement, the Borrower shall notify Event of Default; (C) those assets as to which the Administrative Agent and the Borrower reasonably agree in writing that the costs of obtaining such perfection are excessive in relation to the value to the Lenders of such election not less than ten the security to be afforded thereby and (10D) Business Days prior any Excluded Account. Notwithstanding anything to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as contrary in this Section 5.12, the Administrative Agent may permit grant one or more extensions of time from any time period set forth herein for the taking of or causing any action, delivering or furnishing any notice, information, documents, insurance or opinions or for the creation and perfection of any Liens in its reasonable discretion and any such extensions may, in the sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee discretion of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryAdministrative Agent be effective retroactively.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of a Loan Party(or ceases to be an Immaterial Subsidiary), whether pursuant to formation, acquisition or otherwise, (x) the Borrower Parent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Domestic Subsidiary of a Loan Partyor ceases to be an Immaterial Subsidiary (or such later date as the Administrative Agent may agree to in its sole discretion), the Borrower Parent shall cause such Domestic Subsidiary (other than (A) a Securitization Subsidiary, (B) a Domestic Subsidiary that is not wholly-owned; (C) a Domestic Subsidiary that is an Immaterial Subsidiary or (D) any Subsidiary that is prohibited by Requirements of Law or any Contractual Obligation from guaranteeing the Obligations) (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property constituting Collateral by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, Documents and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesDate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Domestic Subsidiary of owned by a Loan PartyParty or ceases to be an Immaterial Subsidiary, the Borrower Parent shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary (or ceases to be an Immaterial Subsidiary), whether pursuant to formation, acquisition or otherwise (other than (A) a Foreign Subsidiary that is an Immaterial Subsidiary, (B) a Foreign Subsidiary excluded by the Administrative Agent in its sole discretion, or (C) any Foreign Subsidiary that is prohibited by Requirements of Law or any Contractual Obligation from guaranteeing the Obligations), (x) Parent shall promptly notify the Administrative Agent thereof and (y) within 60 days after such Person becomes a Foreign Subsidiary or ceases to be an Immaterial Subsidiary or, if the Administrative Agent determines in its sole discretion that Parent is working in good faith, such longer period as the Administrative Agent shall permit, Parent shall, or shall cause the applicable Loan Party to (i) become a Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property constituting Collateral by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing the applicable Collateral Document in the Subsidiary’s Relevant Jurisdiction, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements and instruments and documents reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) pledge all of the Capital Stock of such Foreign Subsidiary owned by a Loan Party (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in such Subsidiary’s Relevant Jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, (iii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iv) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request. Notwithstanding the foregoing, Parent shall not be required to pledge Capital Stock of a Foreign Subsidiary if the Administrative Agent, in consultation with the Borrower, reasonably determines that such a pledge is prohibited by law or that the cost or other consequences (including any adverse tax consequences) of providing such a pledge is excessive in view of the benefits in respect of the security for the Obligations hereunder to be obtained therefrom.
(c) Parent agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental officesSection 5.12, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section 5.12 (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section 5.12 shall be at the expense of the Borrower or the applicable Loan Party, Party and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary As a condition to the inclusion of any Unencumbered Pool Property in the Unencumbered Pool Value, the REIT Guarantor and the Borrower or a shall (a) cause (i) the Subsidiary that owns such Unencumbered Pool Property (which shall be deemed a Person organized under the laws of any state of the United States or the District of Columbia), if not already a Guarantor, to become a Guarantor hereunder and a party to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement and (ii) each Subsidiary that is not a Loan Party that owns, directly or indirectly, any Capital Stock of any Subsidiary which becomes a Guarantor pursuant to clause (i) above to become a Guarantor hereunder and a party to the Guaranty and Security Agreement and to xxxxx x Xxxx in such Capital Stock pursuant to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement (provided that, unless designated such Subsidiary owns an Unencumbered Pool Property, it shall not be required to xxxxx x Xxxx on, or security interest in, any of its assets or property other than any such Capital Stock of other Subsidiary Loan Parties), in each case on or before the date on which a Property owned by Borrower any such Subsidiary is initially included as an Unrestricted Unencumbered Pool Property; and (b) cause each such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in accordance connection with the terms foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of Section 5.12(csuch Subsidiary, favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner). In the event that, subsequent all of which shall be reasonably satisfactory to the Closing DateAdministrative Agent.
(b) If, during any fiscal quarter, any Person (other than an Excluded Subsidiary) becomes a Material Subsidiary of or any Excluded Subsidiary that was a Loan PartyMaterial Subsidiary ceases to be subject to the restriction which prevented it from becoming a Guarantor as otherwise required under this Agreement, whether then, not later than the date on which the Compliance Certificate is required to be delivered pursuant to formationSection 5.1(c) with respect to such fiscal quarter or, acquisition if such fiscal quarter is the fourth fiscal quarter, the fiscal year ending on the last day of such fiscal quarter, or otherwisesuch longer period as the Administrative Agent may agree in its sole discretion, (x) the REIT Guarantor and the Borrower shall notify (i) cause such Subsidiary to become a Guarantor hereunder through the execution and delivery to the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary a Joinder Agreement and (yii) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of such Subsidiary, favorable opinions of counsel to such Subsidiary (iwhich shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner), all of which shall be reasonably satisfactory to the Administrative Agent. As provided in Section 3.4, a Property that is to become an Unencumbered Pool Property and that is owned by a Subsidiary that is not a Guarantor shall not be considered to be an Unencumbered Pool Property until such time as the Administrative Agent shall have received the items referred to in Section 3.4.
(c) The Borrower may, at its option, cause any Subsidiary that is not already a Guarantor to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement Joinder Agreement and the other items required to be delivered under the immediately preceding clauses (a) and (b), as applicable.
(d) Notwithstanding the foregoing, no Subsidiary may become a Guarantor in accordance with the terms of this Section unless (i) such Subsidiary is a Subsidiary of the Borrower and (ii) the Lenders have received from the Borrower any such documentation and other information requested by the Administrative Agent or any Lender pursuant to Section 10.13 at least three Business Days prior to the proposed effectiveness of such Subsidiary’s agreement to become a Guarantor.
(e) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from any Loan Document (and, notwithstanding Section 7.3.(a)(iv), the Borrower may liquidate or dissolve such Guarantor) so long as (i) such Guarantor is not a Property Owner, (ii) such Guarantor does not own, directly or indirectly, any Capital Stock of any Property Owner, (iii) such Guarantor is not a Material Subsidiary, (iv) such Guarantor is not otherwise required to be a party to the Guaranty and Security Agreement in form and substance reasonably satisfactory to under the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documentsimmediately preceding subsection (b), (iiv) to grant Liens no Default or Event of Default shall then be in favor of the Administrative Agent in the proved Oil and Gas Properties existence or would occur as a result of such Subsidiary by executing and delivering to the Administrative Agent such Mortgagesrelease, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documentsa Default or Event of Default resulting from a violation of any of the covenants contained in Section 5.16 or Article VI, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions(vi) all representations and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after as of the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to release and with the Administrative Agent same force and effect as security for the Obligations by executing if made on and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agentas of such date, and (iivii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that received such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be written request at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) least 10 Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of time as release. Delivery by the Borrower to the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement such request shall constitute a representation by the Borrower that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee matters set forth in the preceding sentence (both as of the obligations thereunder date of the giving of such request and (iias of the date of the effectiveness of such request) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiaryare true and correct with respect to such request.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of The Borrower or a will cause each future Significant Domestic Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to promptly execute and deliver to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, Administrative Agent (x) the Borrower shall notify the Administrative Agent and the Lenders not less no later than ten (10) 10 Business Days prior to after the formation first Determination Date (as defined below) following the creation or acquisition of such Significant Domestic Subsidiary and (including by way of Division) or the date on which such Subsidiary becomes a Significant Domestic Subsidiary, or (y) within five (5) Business Days after such Person becomes a Subsidiary in the case of a Loan PartySignificant Domestic Subsidiary created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the Borrower shall cause consummation of such Subsidiary Permitted Acquisition, in each case (i) to become a new Guarantor the Subsidiary Guaranty, the Subsidiary Pledge Agreement and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Subsidiary Security Agreement in form and substance reasonably satisfactory to the Administrative Agent(or appropriate joinders thereto, and authorizing and deliveringas applicable), at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if as may reasonably be requested by the Administrative Agent, legal opinions) and landlord/mortgagee waivers (provided that, in the case of landlord/mortgagee waivers, if the Borrower uses commercially reasonable efforts to take all obtain such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on waivers from the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 applicable counterparties thereto, Borrower’s obligations with respect to any proved Oil and Gas Properties. In addition, within five (5such waivers under this Section 5.11(a) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agentbe satisfied), and (ii) if the Capital Stock an opinion of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock counsel from counsel and in form and substance reasonably acceptable to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees thatwill pledge to the Collateral Agent (for the benefit of the Secured Parties) pursuant to the Borrower Pledge Agreement (or, if applicable, cause a Significant Domestic Subsidiary to pledge to the Collateral Agent (for the benefit of the Secured Parties) pursuant to the Subsidiary Pledge Agreement) (x) no later than 10 Business Days after the first Determination Date following the due execution and delivery creation or acquisition of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco or the date on which a first-tier Foreign Restricted Subsidiary becomes a Significant Foreign Subsidiary or a Foreign Subsidiary Holdco becomes a Significant Foreign Subsidiary Holdco, or (y) in the case of a first-tier Significant Foreign Subsidiary or a Significant Foreign Subsidiary Holdco created or acquired in connection with a Permitted Acquisition, no later than six (6) months after the consummation of such Permitted Acquisition, in each case (i) 65% of the Collateral Documents required to be executed voting Equity Interests of such first-tier Significant Foreign Subsidiary or such Significant Foreign Subsidiary Holdco formed or acquired after the Effective Date and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (aii) (to the extent that such Lien can be perfected by execution, delivery 100% of the Collateral Documents and/or recording non-voting Equity Interests of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower such first-tier Significant Foreign Subsidiary or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agentsuch Significant Foreign Subsidiary Holdco.
(c) In the event that, subsequent addition to the Closing Dateforegoing, any Person becomes a subsidiary of a Loan Party, whether pursuant except to formation, acquisition or otherwise, and the extent set forth in the Borrower elects for such Person to become an Unrestricted Subsidiary under this Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement and the Subsidiary Security Agreement, respectively, the Borrower, its Significant Domestic Subsidiaries and each Subsidiary Guarantor shall notify cause such documents and instruments as may be reasonably requested by the Collateral Agent (or any Lender through the Collateral Agent) from time to time to be executed and delivered and do such further acts and things as reasonably may be required in order for the Collateral Agent, for the benefit of the Secured Parties, to obtain a fully perfected first priority Lien on all Collateral, subject to Liens permitted by Section 6.02 and subject to Section 5.11(f). For purposes of this Section 5.11, the “Determination Date” shall be the date of delivery of the annual financial statements pursuant to Section 5.01(a).
(d) In the event that any ECA Borrower or ECA Guarantor ceases to be party to a Permitted ECA Financing, including due to the repayment of its obligations under such Permitted ECA Financing, and such ECA Borrower or ECA Guarantor is (or would be, but for the fact that it is an ECA Borrower or ECA Guarantor) a Significant Domestic Subsidiary or a Significant Foreign Subsidiary, the Borrower shall comply with this Section 5.11 with respect to such Restricted Subsidiary within 90 calendar days from the date such Restricted Subsidiary ceases to be a party to a Permitted ECA Financing.
(e) From and after repayment in full of a Permitted ECA Financing of an ECA Borrower (other than any such repayment that is in connection with a refinancing of such Permitted ECA Financing) that was incurred under Section 6.01(b)(xxxv) and so long as such ECA Borrower is not at such time party to any other Permitted ECA Financing or, in the case of any ECA Borrower that is a Foreign Subsidiary, any other Indebtedness that is permitted hereunder that is secured by a pledge of the Equity Interest of such ECA Borrower, the Borrower and its Restricted Subsidiaries will not pledge the Equity Interests of such ECA Borrower in favor of any Person other than Collateral Agent for the benefit of the Secured Parties (it being understood that this clause (e) shall not constitute a requirement that the Equity Interests of any ECA Borrower be pledged in favor of the Collateral Agent for the benefit of the Secured Parties); provided that if such Equity Interests are pledged in favor of the Collateral Agent for the benefit of the Secured Parties, such Equity Interests may also be pledged for the benefit of holders of any other Indebtedness permitted by this Agreement that is secured by Permitted Liens on the Collateral on a pari passu basis with, or junior basis to, the Liens securing the Secured Obligations (so long as the holders of such Indebtedness are subject to the Pari Passu Intercreditor Agreement or a Customary Intercreditor Agreement, as applicable).
(f) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, but without waiving or limiting any obligation of the Borrower hereunder, the Administrative Agent and Collateral Agent will not take any action in respect of the Collateral pursuant to this Agreement or any other Loan Document that would constitute or result in any assignment of any Communications License held by the Borrower or any of its Subsidiaries (or assigned or transferred to the Borrower or any of its Subsidiaries) or any transfer of control of the holder of any Communications License held by the Borrower or any of its Subsidiaries (or assigned or transferred to the Borrower or any of its Subsidiaries), within the meaning of Section 310(d) of the Communications Act or other Communications Laws, if such assignment of such Communications License or such transfer of control would require thereunder the prior approval of the FCC or other Governmental Authority, without first obtaining such approval. The Administrative Agent and the Collateral Agent agrees that (a) voting rights in the Equity Interests of each Subsidiary Guarantor, but solely to the extent any such Subsidiary Guarantor is the holder of any Communications License, will remain with the holders of such voting rights upon and following the occurrence of an Event of Default until any required prior approvals of the FCC or other Governmental Authority, as applicable, shall have been obtained; (b) to the extent required by law, upon and following the occurrence of any Event of Default and foreclosure upon the Equity Interests of any Subsidiary of the Borrower holding any Communications License by the Administrative Agent or the Collateral Agent, there will be either an arm’s length private or public sale of such Equity Interests; and (c) prior to the exercise of stockholder rights by the purchaser at any such sale, the prior consent of the FCC pursuant to Section 310(d) of the Communications Act or any other Communications Laws, and of any other Governmental Authority pursuant to applicable Communications Laws, will be obtained.
(g) Notwithstanding anything to the contrary herein, (x) in the event that any Loan Party grants a Lien under the Senior Secured Revolving Credit Documents or the Senior Secured Notes Documents in any assets of any Loan Party and such assets do not otherwise constitute Collateral under Security Documents securing the Secured Obligations, except to the extent inconsistent with Section 2.1(e) of the Pari Passu Intercreditor Agreement or if such Lien is declined in writing by the Collateral Agent after written request from the Borrower, such Loan Party shall concurrently therewith (i) to xxxxx x Xxxx to the Collateral Agent for the benefit of the Secured Parties in such asset and cause such assets to constitute Collateral under the Security Documents to secure the Secured Obligations, (ii) to take such actions as may be necessary to perfect the Liens granted to the Collateral Agent therein and (iii) to take all other necessary steps reasonably requested by the Collateral Agent in connection with the foregoing and (y) in the event that any Loan Party executes or delivers any agreement or instrument or takes any other action to perfect, preserve or maintain the security interests granted under the Senior Secured Revolving Credit Documents or the Senior Secured Notes Documents, except to the extent inconsistent with Section 2.1(e) of the Pari Passu Intercreditor Agreement, such Loan Party shall, unless declined in writing by the Collateral Agent, concurrently therewith deliver such agreement or instrument, or take such action to perfect, preserve or maintain the security interests granted to the Collateral Agent under the Security Documents; provided, however, that execution and delivery of a control agreement over deposit accounts and securities accounts under the Senior Secured Revolving Credit Documents shall be deemed to satisfy any requirement to deliver a control agreement to the Collateral Agent with respect to such deposit account or securities account (it being understood that the foregoing shall not affect Section 2.9 of the Pari Passu Intercreditor Agreement, and the Collateral Agent and the Secured Parties shall obtain the benefit of perfection thereunder with respect to such deposit accounts and securities accounts).
(h) The Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or the delivery of other deliverables with respect to, particular assets, and particular assets may be excluded from the Collateral, to the extent that the Administrative Agent and the Lenders Borrower reasonably agree in writing that the cost of creating or perfecting such election not less than ten (10) Business Days prior security interests in such assets, shall be excessive in relation to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as benefits to be obtained by the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders therefrom.
Appears in 1 contract
Samples: Credit Agreement (Viasat Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired Within 30 days (or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower such longer period as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent shall permit in its sole discretion) after the Borrower delivers (or is required to have delivered) the financial statements required by Section 5.1(b) and the Lenders not less than ten (10Compliance Certificate required by Section 5.1(c) Business Days prior with respect to each of the formation or acquisition first and third Fiscal Quarter of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary each Fiscal Year of a Loan PartyHoldings, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, Real Estate Documents with respect to any Material Real Estate of such Joining Guarantor, intercreditor agreements, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11 and (D) to use commercially reasonable efforts to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to any proved Oil and Gas Properties. In additionMaterial Leases pursuant to which it leases Real Estate, within five (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Within 30 days (or such longer period as the Administrative Agent shall permit in its sole discretion) after the Borrower delivers (or is required to have delivered) the financial statements required by Section 5.1(b) and the Compliance Certificate required by Section 5.1(c) with respect to each of the first and third Fiscal Quarter of each Fiscal Year of Holdings, the Borrower shall (i) cause the applicable Loan Parties to pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement (to the extent such Capital Stock has not previously been so pledged), (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank (to the extent such certificates and powers have not previously been so delivered) and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) If as of the end of any Fiscal Quarter either (x) the aggregate assets of all Immaterial Subsidiaries as of such date are in excess of 10.0% of the total assets of the Borrower and its Subsidiaries (other than, for the avoidance of doubt, Specified Conflicted Subsidiaries) determined on a consolidated basis as of such date or (y) the aggregate revenues of all Immaterial Subsidiaries as of such date are in excess of 5.0% of the total revenues of the Borrower and its Subsidiaries (other than, for the avoidance of doubt, Specified Conflicted Subsidiaries) on a consolidated basis as of such date (such percentages in clauses (x) and (y), the “Threshold Amounts”), then within 30 days (or such longer period as the Administrative Agent shall permit in its sole discretion) after the Borrower delivers (or is required to have delivered) the financial statements required by Section 5.1(a) and (b) and the Compliance Certificate required by Section 5.1(c) with respect to such Fiscal Quarter, the Borrower shall cause one or more of such Immaterial Subsidiaries to become an additional Subsidiary Loan Party to the extent necessary to cause the aggregate assets and the aggregate revenue of all Immaterial Subsidiaries at such time to be no greater than the Threshold Amounts, by executing and delivering the documents and taking the actions described in subsection (a) above as if such Domestic Subsidiaries were Joining Guarantors.
(d) Each of Holdings and the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (PACS Group, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Within 75 days after the end of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms second Fiscal Quarter of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary each Fiscal Year of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify (or, if the Administrative Agent and determines in its sole discretion that the Lenders Borrower is working in good faith, such longer period as the Administrative Agent shall permit not less than ten (10) Business Days prior to exceed 60 additional days), commencing with the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party2016 Fiscal Year, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11, and (D) to deliver pursuant to Section 5.13 Real Estate Documents with respect to owned Material Real Estate and Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord or a landlord under a Material Master Lease), within five in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) Within 75 days after the end of the second Fiscal Quarter of each Fiscal Year of the Borrower (or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days), commencing with the 2016 Fiscal Year, the Borrower shall cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) If (i) the Leverage Ratio for the four consecutive Fiscal Quarter period ending on the last day of any Fiscal Quarter, commencing with the Fiscal Quarter ending on or about December 31, 2016, is greater than 1.50:1.00 and (ii) as of the last day of such Fiscal Quarter either (x) the aggregate assets of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 20.0% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of such date or (y) the aggregate revenues of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 10.0% of the total revenues of the Borrower and its Subsidiaries on a consolidated basis as of such date (such percentages in clauses (x) and (y), the “Threshold Amounts”), then within 75 days after the end of such Fiscal Quarter (or with respect to the fourth Fiscal Quarter of each Fiscal Year, then within 120 days after the end of such Fiscal Quarter), the Borrower shall cause one or more of such Domestic Subsidiaries that is at such time not a Subsidiary Loan Party to become an additional Subsidiary Loan Party to the extent necessary to cause the aggregate assets and the aggregate revenue of all Subsidiaries of the Borrower that are not Subsidiary Loan Parties at such time (other than Excluded Subsidiaries and Specified Subsidiaries) to be no greater than the Threshold Amounts, by executing and delivering the documents and taking the actions described in subsection (a) above as if such Domestic Subsidiaries were Joining Guarantors.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. 1Subsidiaries. If (ai) Any newly any Subsidiary (other than an Excluded Subsidiary) is formed or acquired after the Closing Date or (ii) any Subsidiary ceases to be an Excluded Subsidiary pursuant to the definition thereof, within forty-five (45) calendar days after such Subsidiary is formed or acquired or formed subsidiary of Borrower ceases to be an Excluded Subsidiary (or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower such longer period as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Partymay agree in its sole, reasonable discretion), the Borrower Representative shall (i) unless such Subsidiary becomes a Borrower pursuant to Section 5.17, cause such Subsidiary (i) to duly execute and deliver a joinder agreement to become a new Guarantor and to grant Liens in favor guarantor of the Administrative Agent in all of its personal property by executing Obligations under, and delivering subject to the Administrative Agent terms and conditions of, the Guaranty and Collateral Agreement (or, in the case of a supplement Person required to or that elects to become a Borrower, a Joinder Agreement) together with all schedules and information thereto appropriately completed with respect to such Subsidiary, (ii) cause such Subsidiary to deliver a joinder agreement to the Guaranty and Collateral Agreement providing for the creation of Liens on the Collateral described in such agreement and owned by such Subsidiary as security for the Obligations, (together with all schedules and information thereto appropriately completed with respect to such Subsidiary), (iii) cause such Subsidiary to deliver a joinder agreement to the Guaranty and Collateral Agreement providing for the pledge of any Equity Interests held by such Subsidiary pursuant to the Guaranty and Collateral Agreement (except to the extent that such Equity Interests constitute Excluded Property) (together with all schedules and information thereto appropriately completed with respect to such Subsidiary), (iv) [reserved], (v) deliver, or cause to delivered, any and all certificates representing Equity Interests (if any) held by such Subsidiary, and any Equity Interest in such Subsidiary that are held by other Persons (if any), that are (in each case) required to be delivered pursuant to the Security Agreement Documents (and accompanied, in each case, by undated stock powers or other appropriate instrument of transfer executed in blank), (vi) take such other actions such that all of the Equity Interests (except to the extent that such Equity Interests constitute Excluded Property or are not otherwise required to be pledged or certificated pursuant to the terms of the Credit Documents) issued by any such Subsidiary shall be pledged as security for the Obligations pursuant to such Credit Documents in form and substance reasonably reasonable satisfactory to the Administrative Agent, and authorizing and delivering, at the request as may be required under applicable Laws to effectuate a fully enforceable first priority pledge of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan DocumentsEquity Interests, (iivii) deliver or cause to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering be delivered to the Administrative Agent UCC financing statements naming such Mortgages, to Subsidiary as “Debtor” and naming the extent Administrative Agent for the benefit of the Secured Parties as “Secured Party,” in form and substance sufficient in the reasonable opinion of the Administrative Agent and its counsel for filing in each applicable UCC filing office in which filing is necessary to maintain compliance with Section 5.15perfect the Administrative Agent’s Liens in the Collateral granted by such Subsidiary under the applicable Security Documents, and (iiiviii) deliver, or cause to deliver all such other documentation (includingbe delivered, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by an opinion of counsel reasonably satisfactory to the Administrative Agent, legal opinions) and Agent as to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on customary matters in connection with the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock joinder of such Subsidiary to the Administrative Agent as security for Credit Documents. For the Obligations by executing and delivering a supplement avoidance of doubt, this Section 5.15.1 does not apply to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower creation or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary perfection of a Loan Partysecurity interest in Real Property, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit which requirements are set forth in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiarySection 5.15.3 below.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of (other than an Excluded Subsidiary) or an Unrestricted Subsidiary is designated as a Loan PartyRestricted Subsidiary or an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 45 days (5or such longer period as the Administrative Agent may permit) Business Days after such Person becomes a Subsidiary of or is designated a Loan PartyRestricted Subsidiary or ceases to be an Immaterial Subsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor by executing and delivering to the Administrative Agent a joinder to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, Documents and (iii) to deliver all such other documentation (including, without limitation, certified organizational documentsOrganization Documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and customary legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 on the Closing Date if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesDate. In addition, within five 45 days (5or such longer period as the Administrative Agent may permit) Business Days after the date any Person becomes a Domestic Subsidiary of (other than a Domestic Foreign Holdco), to the extent such Domestic Subsidiary is owned directly by any Loan PartyParty and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), the Borrower shall, or shall cause the applicable Loan Party to shall (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Domestic Foreign Holdco, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof and (y) to the extent such Foreign Subsidiary or Domestic Foreign Holdco is owned directly by any Loan Party and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), within 45 days (or such longer period as the Administrative Agent may permit) after such Person becomes a Foreign Subsidiary or Domestic Foreign Holdco, the applicable Loan Party shall (i) pledge all of the Capital Stock (but, in any event, not to exceed 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock) of such Foreign Subsidiary or Domestic Foreign Holdco, as applicable, owned by such Loan Party, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority (subject to Liens permitted by Section 7.2) perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or, if required to be delivered, possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(cd) In the event that, subsequent Notwithstanding anything herein to the Closing Datecontrary or in any other Loan Document, (i) the Borrower and the Guarantors shall not be required create or perfect a security interest under the laws of any Person becomes non-U.S. jurisdiction or to create or perfect a subsidiary security interest in assets located or titled outside the U.S. or to reimburse or indemnify the Administrative Agent for any costs or expenses incurred in connection with the taking of any of the foregoing actions in any non-U.S. jurisdiction and (ii) perfection shall not be required with respect to the following: (A) commercial tort claims with a claim value of less than $4,000,000; (B) letter-of-credit rights with a face amount less than $4,000,000 (other than those to which perfection of the security interest in such Collateral is accomplished solely by the filing of a Loan Party, whether pursuant to formation, acquisition or otherwise, and UCC financing statement); provided that neither the Borrower elects for such Person nor any Guarantor shall be required to become establish the Administrative Agent’s “control” (within the meaning of Section 9-107 of the UCC) over any letter-of-credit rights with a face amount greater than or equal to $4,000,000 except upon the Administrative Agent’s request during the existence of an Unrestricted Subsidiary under this Agreement, the Borrower shall notify Event of Default; (C) those assets as to which the Administrative Agent and the Borrower reasonably agree in writing that the costs of obtaining such perfection are excessive in relation to the value to the Lenders of such election not less than ten (10) Business Days prior the security to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder afforded thereby and (iiD) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryExcluded Account.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Borrowers shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Borrowers shall cause such Domestic Subsidiary (i) to to
become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, a Patent Security Agreement and a Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, including certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Borrowers shall, or shall cause the applicable Loan Party to to, (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrowers shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole reasonable discretion that the Borrowers are working in good faith, such longer period as the Administrative Agent shall permit, not to exceed 60 additional days, the Borrowers shall, or shall cause the applicable Loan Party to, (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank, to the extent such Capital Stock is certificated, and (iii) deliver all such other documentation (including certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees Borrowers agree that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Borrowers or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dakota Plains Holdings, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Within 75 days after the end of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance the second Fiscal Quarter of each Fiscal Year of the Borrower, commencing with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party2015 Fiscal Year, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $7,500,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11, and (D) to deliver pursuant to Section 5.13 Real Estate Documents with respect to owned Material Real Estate and Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord or a landlord under a Material Master Lease), within five in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) Within 75 days after the end of the second Fiscal Quarter of each Fiscal Year of the Borrower, commencing with the 2015 Fiscal Year (or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days), the Borrower shall cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) To the extent that either (x) the aggregate assets or (y) the aggregate revenue, in each case, of Immaterial Subsidiaries, is greater than the Immaterial Subsidiary Threshold Amount, in each case for the four consecutive Fiscal Quarter period ending on the last day of any Fiscal Quarter, commencing with the Fiscal Quarter ending on or about June 30, 2015, then within 75 days after the end of such Fiscal Quarter (or with respect to the fourth Fiscal Quarter of each Fiscal Year, then within 120 days after the end of such Fiscal Quarter), the Borrower shall cause one or more other Domestic Subsidiaries to become additional Guarantors to the extent necessary to cause the aggregate assets and the aggregate revenue of Immaterial Subsidiaries to be no greater than the Immaterial Subsidiary Threshold Amount, by executing and delivering the documents and taking the actions described in subsection (a) above as if such Domestic Subsidiaries were Joining Guarantors.
(d) Within 75 days after the end of each Fiscal Quarter (or with respect to the fourth Fiscal Quarter of each Fiscal Year, then within 120 days after the end of such Fiscal Quarter), commencing with the Fiscal Quarter ending on or about June 30, 2015, the Borrower will deliver to the Administrative Agent an officer’s certificate executed by a Responsible Officer, certifying (A) an updated Schedule 4.14 (after giving effect to compliance with clauses (a) and (c) above) attached to such officer’s certificate, (B) the aggregate assets (on a non-consolidated basis) of Domestic Subsidiaries that are not Loan Parties (excluding Excluded Subsidiaries) as of the last day of such Fiscal Quarter (after giving effect to compliance with clauses (a) and (c) above), (C) the aggregate revenue (on a non-consolidated basis) of Domestic Subsidiaries that are not Loan Parties (excluding Excluded Subsidiaries) for the four consecutive Fiscal Quarter period ending on the last day of such Fiscal Quarter, and (D) that the requirements of this Section 5.12 have been satisfied for such Fiscal Quarter (other than with respect to subsection (b) to the extent the Administrative Agent has extended the deadline for compliance as contemplated thereby).
(e) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a direct Domestic Subsidiary (other than any Immaterial Subsidiary) of a any Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Domestic Subsidiary of that is a Loan PartyRestricted Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, a Patent Security Agreement and a Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all fee interests in Real Estate with an individual value exceeding $2,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Domestic Subsidiary of a any Loan PartyParty or any of its Subsidiary Loan Parties, the Borrower applicable Loan Party shall, or shall cause the applicable Subsidiary Loan Party to to, (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by such Loan Party or Subsidiary Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. Notwithstanding the foregoing requirements of this Section 5.12(a), no Loan Party shall be required to take any such actions with respect to any of the Joliet Subsidiaries (and such Joliet Subsidiaries shall not be deemed to be Loan Parties) for so long as such Joliet Subsidiary is not wholly-owned, directly or indirectly, by any Loan Party, other than to take such actions required by the second sentence of this Section 5.12(a) with respect to the pledge of all of the Capital Stock of Arc Terminals Joliet owned by the Borrower.
(b) In the event that, subsequent to the Closing Date, any Person becomes a direct Foreign Subsidiary (other than any Immaterial Subsidiary) of any Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party or any Subsidiary Loan Party that is a U.S. Person, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the applicable Loan Party shall, or shall cause the applicable Subsidiary Loan Party to, (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver any original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank, and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit Agreement (Arc Logistics Partners LP)
Additional Subsidiaries and Collateral. (a1) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary (other than (a) any Insurance Subsidiary, (b) any Subsidiary of a Loan Partyan Insurance Subsidiary or (c) any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License) (or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan DocumentsDocuments (it being understood and agreed that, with respect to any Foreign Subsidiary, this clause (i) shall include the granting of Liens and taking of all perfection actions under the local laws of such Foreign Subsidiary’s jurisdiction of formation as may be reasonably required by the Administrative Agent), (ii) to grant Liens in favor of the Administrative Agent in all interests in Real Estate (other than Excluded Property) to the proved Oil and Gas Properties of such Subsidiary extent required by Section 5.13 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall reasonably require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a direct Subsidiary of a Loan PartyParty (or such later date as agreed in writing by the Administrative Agent in its sole discretion), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary directly owned by a Loan Party (other than Excluded Property) to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if subject to the Capital Stock of such Subsidiary is certificatedIntercreditor Agreement, deliver the original certificates evidencing such pledged Capital Stock (other than Excluded Property) to the Administrative Agent, together with appropriate powers executed in blank; provided, that (1) if such Person that becomes a Subsidiary is an Insurance Subsidiary, a Subsidiary of an Insurance Subsidiary or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, this requirement to pledge all of the Capital Stock of such Person shall not apply only to the extent the pledge thereof is (or would be) deemed a change of control of such Person or is (or would be) otherwise prohibited by applicable law or regulations and (2) in the case of any Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, it is understood and agreed that until such approval is obtained, such Subsidiary shall not transact business or hold any material assets. For the avoidance of doubt, (x) in no event shall any Insurance Company, Subsidiary of an Insurance Company or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License be required to become a Subsidiary Loan Party, a Loan Party or a Guarantor hereunder; however, for the avoidance of doubt, in the case of the Persons described in clause (1) immediately above, each such Person shall be subject to the applicable covenants contained herein and (y) subject to Section 5.15, the Capital Stock of RRC shall be pledged and perfected under the laws of Cayman Islands (to the extent not prohibited thereunder).
(b2) The Subject to the Intercreditor Agreement, the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Term Loan Agreement (Root, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (xi) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (yii) within five thirty (530) Business Days days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.13 or otherwise in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent Agent, for the benefit of the holders of the Obligations, and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such provided that no Domestic Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been that is a Loan Party on the Closing Date or that such Subsidiary would CFC Holdco shall be required to deliver pursuant to Section 5.13 with respect to become a Guarantor hereunder or grant Liens or otherwise pledge any proved Oil and Gas Properties. of its assets as Collateral hereunder or under any other Loan Document.
(b) In addition, within five thirty (530) Business Days days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank.
(c) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Administrative Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(bd) No Foreign Subsidiary shall be required to become a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.13(a) or under any other Loan Document.
(e) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to after the Closing Date, any Person becomes a Domestic Subsidiary of a Loan PartyParty (other than an Excluded Subsidiary), whether pursuant to formation, acquisition or otherwise, (x) the Borrower Borrowers shall promptly notify the Administrative Agent Lender thereof and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower Borrowers shall cause such Domestic 6597425.v16 0000-0000-0000 v2 Subsidiary (i) to become a new Guarantor Borrower or Guarantor, as determined by Lender, and to grant Liens in favor of the Administrative Agent Lender in all of its personal property Property by executing and delivering to the Administrative Agent a supplement Lender supplements to the Guaranty and Security Agreement Agreement, each in form and substance reasonably satisfactory to Lender and, in the Administrative Agentcase of new Borrowers, a joinder to this Agreement, and authorizing and delivering, at the request of the Administrative AgentLender, such UCC financing statements or similar instruments required by the Administrative Agent Lender to perfect the Liens in favor of the Administrative Agent Lender and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary and, as requested by executing and delivering to the Administrative Agent such MortgagesLender, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, including certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions, and amendments or joinders to subordination agreements and intercreditor agreements, as applicable) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Propertiesby Lender. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower Borrowers shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock Equity Interests of such Domestic Subsidiary to the Administrative Agent Lender as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement or a separate pledge agreement in form and substance satisfactory to the Administrative AgentLender, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock Equity Interests to the Administrative Agent, Lender together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to after the Closing Date, any Person becomes a subsidiary direct Foreign Subsidiary of a any Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time Borrowers shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder promptly notify Lender thereof and (ii) to the Borrower extent such Foreign Subsidiary is owned directly by any Loan Party, Borrowers shall, or shall not designate cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Equity Interests of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Equity Interests of such Foreign Subsidiary, as applicable to Lender as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to Lender, (ii) deliver the original certificates evidencing such pledged Equity Interests to Lender, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including certified organizational documents, resolutions, lien searches, legal opinions, and amendments or joinders to subordination agreements and intercreditor agreements, as applicable) and to take all such other actions as Lender may request.
(c) Borrowers agree that, following the delivery of any Subsidiary as an Unrestricted SubsidiaryLoan Documents required to be executed and delivered by this Section, Lender shall have a valid and enforceable, first priority perfected Lien (subject only to (x) Liens of Advantage under the Advantage Loan Documents and priority agreements related thereto in the Subordination Agreement (Advantage) and the Subordination Agreement (Tri-Party)) on the Property required to be pledged pursuant to subsection (a) of this Section 5.12 and (z) Permitted Liens). All actions to be taken pursuant to this Section 5.12 shall be at the expense of Borrowers or the applicable Loan Party and shall be taken to the satisfaction of Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Danimer Scientific, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Subject to subsection (b) below, no later than December 15 of Borrower or each calendar year, to the extent that the Pro Forma EBITDA of those Subsidiaries which have not delivered all relevant joinder documents pursuant to this Section 9.12 exceeds twenty percent (20%) of Consolidated Pro Forma EBITDA (in each case for the most recent period of four (4) consecutive fiscal quarters), cause to be delivered to the Administrative Agent, (i) a Joinder Agreement duly executed by the Borrower, each such Subsidiary and the parent of each such Subsidiary pursuant to which (A) each such Subsidiary shall become a Subsidiary Guarantor under the Subsidiary Guaranty Agreement, (B) each such Subsidiary shall become a Grantor under the Security Agreement and (C) each such Subsidiary shall become an Issuer or Partnership/LLC under the Pledge Agreement, (ii) such closing documents and closing certificates consistent with Section 6.2 hereof as may reasonably be deemed a Subsidiary unless designated requested by Borrower as an Unrestricted Subsidiary in accordance with the terms Administrative Agent (including, without limitation, favorable legal opinions of Section 5.12(c). In the event that, subsequent counsel to the Closing DateCredit Parties, including opinions of local counsel with respect to any Person becomes a Subsidiary of a Loan PartyCore Subsidiary, whether pursuant addressed to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, Agent with respect to such Joinder Agreement and the Collateral relating thereto) and (iiiii) if such other documents reasonably requested by the Capital Stock of Administrative Agent in order that each such Subsidiary is certificatedshall become bound by all of the terms, deliver covenants and agreements contained in the original certificates evidencing Subsidiary Guaranty Agreement, the Security Agreement, the Pledge Agreement and any other Loan Document applicable to each such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankSubsidiary.
(b) The Borrower agrees thatNotwithstanding anything to the contrary contained in subsection (a) above, following to the due execution and delivery extent that the Pro Forma EBITDA of the Collateral Documents those Subsidiaries which have not delivered all relevant joinder documents required to be executed and delivered by pursuant to this Section, when UCC financing statements Section 9.12 exceeds twenty-five percent (25%) of Consolidated Pro Forma EBITDA (in appropriate form are filed in each case for the appropriate governmental officesmost recent period of four (4) consecutive fiscal quarters) at any time prior to December 15 of each calendar year, the Administrative Agent shall have a valid, first priority perfected Lien on may request that the property Borrower and such Subsidiaries deliver all relevant joinder documents required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken delivered pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
9.12 within twenty (c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (1020) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiarydetermination.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Restatement Date, any Person becomes a Domestic Subsidiary of Parent that is a Loan PartyMaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Parent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Subsidiary Parent shall:
(i) to cause such Domestic Subsidiary to:
(A) become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(B) execute, file with the United States Patent and Trademark Office and the United States Copyright Office (as applicable), and authorizing deliver a copy thereof to the Administrative Agent and deliveringits counsel (together with a confirmation of such filing) any applicable Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement;
(C) execute and deliver any Account Control Agreements (or amendments or supplements to any existing Account Control Agreements) required by Section 5.11;
(D) authorize and deliver, at the request of the Administrative Agent, such UCC financing statements or similar instruments reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, ; and
(iiE) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Domestic Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Domestic Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five Restatement Date; and
(5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to to:
(iA) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and ; and
(iiB) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The In the event that, subsequent to the Restatement Date, any Person becomes a Foreign Subsidiary which is a Material Subsidiary owned directly by any Loan Party, whether pursuant to formation, acquisition or otherwise, (x) Parent shall promptly notify the Administrative Agent and the Lenders thereof and (y) within 60 days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion) after such Person becomes a Foreign Subsidiary, Parent and the Borrower shall, or shall cause the applicable Loan Party to:
(i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to the lesser of (A) 100% of the issued and outstanding voting and non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party and (B) 66% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent;
(ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank; and
(iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) With respect to any Collateral acquired at any time after the Restatement Date by any Loan Party (other than any property described in paragraphs (a) or (b) above), each of Parent and the Borrower agrees that, within 30 days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion), it shall cause the applicable Loan Party to take all actions reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Collateral, including, without limitation, the following:
(i) execute, file with the United States Patent and Trademark Office and the United States Copyright Office (as applicable), and deliver a copy thereof to the Administrative Agent and its counsel (together with a confirmation of such filing) any applicable Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement; and
(ii) execute and deliver any Account Control Agreements (or amendments or supplements to any existing Account Control Agreements) required by Section 5.11.
(d) Each of Parent and the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.Section
Appears in 1 contract
Samples: Credit Agreement (LendingTree, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly At such time as any Subsidiary of any Credit Party is created or acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to after the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant cause to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent be executed and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering delivered to the Administrative Agent (i) a Joinder Agreement such that such Subsidiary shall become a Guarantor hereunder, (ii) a supplement to the Guaranty Security Agreement, a Mortgage for each parcel of real property owned or leased thereby and such other applicable Security Agreement Documents in form and substance reasonably satisfactory to the Administrative AgentAgent such that the assets of such Subsidiary shall become Collateral for the Credit Party Obligations, and authorizing and delivering(iii) a duly executed Pledge Agreement or supplement thereto, at the request of the Administrative Agent, with such UCC financing statements or similar instruments required by changes as the Administrative Agent may reasonably request, such that all of the Capital Stock or other equity interests of such Subsidiary is pledged to perfect the Liens in favor Administrative Agent for the ratable benefit of itself and the Lenders and (iv) favorable legal opinions addressed to the Administrative Agent and granted under any of the Loan Documents, (ii) Lenders in form and substance reasonably satisfactory thereto with respect to grant Liens in favor of such supplements and agreements and such other documents and closing certificates as consistent with Article IV as may be reasonably requested by the Administrative Agent in Agent.
(b) Upon the proved Oil and Gas Properties consummation by any Credit Party or any Subsidiary of such Subsidiary by executing and delivering any lease with respect to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiii) to deliver all such other documentation real property (including, without limitation, certified organizational documentsretail store sites) at which any material assets or equipment are to be located, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and cause to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary executed and/or delivered to the Administrative Agent as security for the Obligations by executing (A) with respect to each such property that is owned, (x) a Mortgage with respect to such property and delivering (y) a supplement favorable opinion of counsel to the Guaranty Credit Parties addressed to the Administrative Agent and Security Agreement the Lenders and in form and substance satisfactory to the Administrative Agent, (B) with respect to each such property that is leased, (x) a copy of the lease and all related documents and (y) a landlord consent and estoppel letter with respect to such property, (C) a legal description of the premises, (D) UCC-1 Financing Statements in form and substance satisfactory to the Administrative Agent with respect to such premises and any other filings or recordings necessary to perfect the security interests of the Lenders in all Collateral located at such premises, and (E) each additional document, instrument or other item of information reasonably requested by the Administrative Agent; (ii) if the Capital Stock of such Subsidiary is certificatedSBA cell sites, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required cause to be executed and delivered (A) all amendments deemed necessary or advisable by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validto all applicable SBA Agreements, first priority perfected Lien on and (B) UCC-1 Financing Statements in form and substance satisfactory to the property required Administrative Agent with respect to such premises and each additional document, instrument or other item of information reasonably requested by the Administrative Agent; and (iii) Non-SBA collocation sites, cause to be pledged pursuant to subsection (a) (executed and/or delivered to the extent that such Lien can be perfected Administrative Agent (A) a Collateral Assignment of Contract Rights and, if requested by executionthe Administrative Agent, delivery a Consent in connection therewith, (B) a legal description of the Collateral Documents and/or recording premises, (C) a copy of the UCC financing statements)lease and all related documents, free (D) UCC-1 Financing Statements in form and clear of all Liens substance satisfactory to the Administrative Agent with respect to such premises and any other than Liens expressly permitted by Section 7.2. All actions filings or recordings necessary to be taken pursuant to this Section shall be at perfect the expense security interests of the Borrower or the applicable Loan PartyLenders in all Collateral located at such premises, and shall be taken to the reasonable satisfaction (E) each additional document, instrument or other item of information reasonably requested by the Administrative Agent.
(c) In the event that, subsequent Promptly deliver from time to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant time such additional Security Documents to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and upon the reasonable request of the Required Lenders with respect to any assets of any such election Person not less than ten (10) Business Days prior subject to the formation or acquisition an existing Lien in favor of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to for the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes ratable benefit of any indenture, credit agreement or similar agreement that contains itself and the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders.
Appears in 1 contract
Samples: Credit Agreement (Horizon Personal Communications Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of that is a Loan PartyMaterial Subsidiary (excluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”), whether pursuant to formation, acquisition or otherwise, otherwise (including if any Domestic Subsidiary ceases to qualify as an Immaterial Subsidiary or is the subject of an Excluded Subsidiary Revocation) (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition thereof and of any Material Real Estate owned by such Subsidiary Joining Guarantor and (y) within five 60 days (5or such longer period as may be agreed to by the Administrative Agent in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyJoining Guarantor, the Borrower shall cause such Subsidiary Joining Guarantor (iA) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11, and (D) to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord, within five an Ensign Landlord or a landlord under a Material Master Lease), in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. In addition, subject to Section 5.13(b), if a Mortgage Trigger Event has occurred prior to such Joining Guarantor becoming a Loan Party, within 60 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Joining Guarantor becomes a Loan Party, the Borrower shall cause such Joining Guarantor to execute and deliver to the Administrative Agent, with respect to all Material Real Estate owned by such Loan Party, such Real Estate Documents as the Administrative Agent shall require; provided that no owned Real Estate shall be taken as Collateral unless (i) the Administrative Agent and all Lenders have received at least 45 days advance written notice (which may be provided via email or via posting on any datasite to which the Lenders have access) thereof and (ii) each Lender has notified (which notice may be provided via email) the Administrative Agent that such Lender has completed its flood insurance due diligence and compliance procedures.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Subsidiary that is a Pass-Through Foreign Holdco (in each case, other any Excluded Subsidiary or Immaterial Subsidiary) that is directly owned by a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) within 60 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) after such Person becomes a Foreign Subsidiary or a Pass-Through Foreign Holdco, as applicable, the Borrower shall, or shall cause the applicable Loan Parties to (i) pledge all of the Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) or (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, on or subsequent to the Closing Restatement Date, any Person becomes a Domestic Subsidiary of a Loan Party(including pursuant to the Ocean Acquisition) or an Excluded Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, (xi) the Borrower shall promptly notify the Administrative Collateral Agent and the Lenders not less than ten thereof, (10) Business Days prior to the formation or acquisition of such Subsidiary and (yii) within five thirty (530) Business Days days after such Person becomes a Domestic Subsidiary of a Loan Partyor such Person ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall cause such Domestic Subsidiary (iother than an Excluded Subsidiary) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property that would otherwise constitute Collateral by executing and delivering to the Administrative Collateral Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.12 or otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent, and authorizing and delivering, at the request of the Administrative Collateral Agent, such UCC financing statements or similar instruments required by the Administrative Collateral Agent to perfect the Liens in favor of the Administrative Agent Collateral Agent, for the benefit of Secured Parties, and granted under any of the Loan Documents, (ii) ; provided that no Domestic Subsidiary that is a CFC Holdco shall be required to become a Guarantor hereunder or grant Liens in favor or otherwise pledge any of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, its assets as Collateral hereunder or under any other Loan Document and (iii) within sixty (60) days after such Person becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if searches and requested by the Administrative Agent, legal opinionsReal Estate Documents) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Restatement Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesMaterial Real Property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan Partyor an Excluded Subsidiary ceases to be an Excluded Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Collateral Agent in form and substance reasonably satisfactory to the Administrative Collateral Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) if to the Capital Stock of such Subsidiary is extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Collateral Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank. Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any Material Real Property of a Person that becomes a Domestic Subsidiary after the Restatement Date whether pursuant to formation, acquisition or otherwise, until (1) the date that occurs forty-five (45) days after the Collateral Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice, and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Material Real Property is located, evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents” and (2) the Collateral Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance have been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed); provided that the Collateral Agent may enter into any such Mortgage prior to the notice period specified above upon receipt of the written confirmation described in clause (2) above and provided further that the Borrower’s obligations under Section 5.12(a) to grant a Mortgage of any Material Real Property within the 60-day time period described herein shall be extended for so long as is required to ensure compliance with the requirements of clause (2) above.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, on or subsequent to the Closing Restatement Date, any Person becomes a subsidiary of Foreign Subsidiary (including pursuant to the Ocean Acquisition) or a Loan PartyForeign Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, and (x) the Borrower elects for shall promptly notify the Collateral Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Collateral Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Collateral Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Collateral Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Collateral Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Collateral Agent may reasonably request.
(c) No Foreign Subsidiary that is a CFC shall be required to become an Unrestricted a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.12(a) or under any other Loan Document.
(d) (i) Within thirty (30) days after Norfolk Holdings becomes a Subsidiary under this Agreementof the Parent (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall notify cause Norfolk Holdings to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property that would otherwise constitute Collateral by executing and the Lenders of such election not less than ten (10) Business Days prior delivering to the formation Collateral Agent a Joinder Agreement substantially in the form of Exhibit 5.12 or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit otherwise in its sole discretion). Notwithstanding anything herein form and substance reasonably satisfactory to the contraryCollateral Agent, (i) and authorizing and delivering, at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes the request of any indenturethe Collateral Agent, credit agreement such UCC financing statements or similar agreement that contains instruments required by the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee Collateral Agent to perfect the Liens in favor of the obligations thereunder Collateral Agent, for the benefit of Secured Parties, and granted under any of the Loan Documents and (ii) within sixty (60) days after Norfolk Holdings becomes a Subsidiary of the Parent (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and requested Real Estate Documents) and to take all such other actions as Norfolk Holdings would have been required to deliver and take pursuant to Section 3.1 if Norfolk Holdings had been a Loan Party on the Restatement Date or that Norfolk Holdings would be required to deliver pursuant to Section 5.13 with respect to any Material Real Property. In addition, within thirty (30) days after Norfolk Holdings becomes a Subsidiary of the Parent, the Borrower shall, or shall cause the Parent to (i) pledge all of the Capital Stock of Norfolk Holdings to the Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering such documentation as reasonably required by Collateral Agent in form and substance reasonably satisfactory to the Collateral Agent, and (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Collateral Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank. Notwithstanding the foregoing, the Collateral Agent shall not designate enter into any Subsidiary Mortgage in respect of any Material Real Property of Norfolk Holdings, until (1) the date that occurs forty-five (45) days after the Collateral Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice, and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Material Real Property is located, evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents” and (2) the Collateral Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance have been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed); provided that the Collateral Agent may enter into any such Mortgage prior to the notice period specified above upon receipt of the written confirmation described in clause (2) above and provided further that the Borrower’s obligations under Section 5.12(d) to grant a Mortgage of any Material Real Property within the 60-day time period described herein shall be extended for so long as an Unrestricted Subsidiaryis required to ensure compliance with the requirements of clause (2) above.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a wholly-owned Subsidiary of the Borrower (including any Subsidiary that is not wholly-owned solely as a Loan Partyresult of directors’ qualifying shares required by applicable law), whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days after such Person becomes a wholly-owned Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent), the Borrower shall cause such Subsidiary (i) to become a new Guarantor (unless such Subsidiary (1) is a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor, (2) is prohibited by law from becoming a Guarantor, (3) is a Subsidiary of a Foreign Subsidiary that is not required to be a Guarantor or (4) the primary assets of such Subsidiary are Capital Stock or Indebtedness of a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor) and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents; provided, that no Domestic Loan Party shall be required to take any action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest in any assets of the Borrower or Loan Party which assets are either located outside of the United States or would require action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest therein and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) reasonably requested by Administrative Agent and consistent with the documents delivered by the Loan Parties on or prior to take all such other actions as such Subsidiary would have been required to deliver and take the Closing Date pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties4.01(a)(iii). In addition, within five thirty (530) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan Partythe Borrower (or such later date as agreed to by the Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (if any) to the Administrative Agent, together with appropriate powers executed in blank; provided that in no event shall any Capital Stock of any non-wholly owned Domestic Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock, if any, to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request provided, that Liens on the Capital Stock of (or other ownership interest in) a Foreign Subsidiary that are required to be pledged shall be documented under U.S. law; provided, further that in no event shall any Capital Stock of any non-wholly owned Foreign Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Within 75 days after the end of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms second Fiscal Quarter of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary each Fiscal Year of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify (or, if the Administrative Agent and determines in its sole discretion that the Lenders Borrower is working in good faith, such longer period as the Administrative Agent shall permit not less than ten (10) Business Days prior to exceed 60 additional days), commencing with the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party2020 Fiscal Year, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $50,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Date, (C) to comply with Section 5.11, and (D) to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord or a landlord under a Material Master Lease), within five in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) Within 75 days after the end of the second Fiscal Quarter of each Fiscal Year of the Borrower (or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days), commencing with the 2020 Fiscal Year, the Borrower shall (i) cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) If (i) the Leverage Ratio for the four consecutive Fiscal Quarter period ending on the end of any Fiscal Quarter, commencing with the Fiscal Quarter ending on or about December 31, 2019, is greater than 2.00:1.00 and (ii) as of the end of such Fiscal Quarter either (x) the aggregate assets of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 20.0% of the total assets of the Borrower and its Subsidiaries determined on a consolidated basis as of US-DOCS\107476819.12 such date or (y) the aggregate revenues of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date are in excess of 10.0% of the total revenues of the Borrower and its Subsidiaries on a consolidated basis as of such date (such percentages in clauses (x) and (y), the “Threshold Amounts”), then within 75 days after the end of such Fiscal Quarter (or with respect to the fourth Fiscal Quarter of each Fiscal Year, then within 120 days after the end of such Fiscal Quarter), the Borrower shall cause one or more of such Domestic Subsidiaries that is at such time not a Subsidiary Loan Party to become an additional Subsidiary Loan Party to the extent necessary to cause the aggregate assets and the aggregate revenue of all Subsidiaries of the Borrower that are not Subsidiary Loan Parties at such time (other than Excluded Subsidiaries and Specified Subsidiaries) to be no greater than the Threshold Amounts, by executing and delivering the documents and taking the actions described in subsection (a) above as if such Domestic Subsidiaries were Joining Guarantors.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Diligently pursue the approval of the Nevada Gaming Commission to the pledge of the Equity Interests in each of its applicable Subsidiaries to the Administrative Agent pursuant to the Pledge Agreement and, promptly upon receipt thereof and in any event prior to November 1, 2004, execute and deliver the Pledge Agreement to the Administrative Agent, together with stock certificates representing 100% of the Equity Interests held by Borrower or a Subsidiary and its Subsidiaries in their respective direct Subsidiaries (to the extent certificated, but in any event excluding any Issuance Subsidiary), together with appropriate stock powers (which stock certificates shall be deemed a Subsidiary unless designated maintained by Borrower as an Unrestricted Subsidiary the Administrative Agent in accordance with the terms State of Section 5.12(cNevada). In ;
(b) Notify the event that, subsequent to Administrative Agent at the Closing Date, time that any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formationand promptly thereafter (and in any event within thirty days), acquisition or otherwise, cause such Person (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior except to the formation or acquisition extent that the Gaming Laws of such Subsidiary the relevant jurisdiction do not permit the same and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, except for the Borrower shall cause such Subsidiary Issuance Subsidiary); to (i) to become a new Guarantor execute and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering deliver to the Administrative Agent a supplement Guaranty or a joinder to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agenta Guaranty, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by as the Administrative Agent to perfect the Liens in favor of the Administrative Agent shall deem appropriate for such purpose, and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering deliver to the Administrative Agent Collateral Documents of the types referred to in Section 4.01(a) and favorable opinions of counsel to such MortgagesPerson (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clauses (i) and (ii));
(c) Notify the Administrative Agent at the time of acquisition or the formation of any Subsidiary, cause to be delivered to the Administrative Agent a pledge all of the Equity Interests held by Borrower and its Subsidiaries in each such Subsidiary other than the Issuance Subsidiary (except to the extent necessary to maintain compliance with Section 5.15that the Gaming Laws of the relevant jurisdiction do not permit the pledge of the Equity Interests in any Person which is the holder of a gaming license);
(d) Notify the Administrative Agent at the time of the acquisition by Borrower or any of its Subsidiaries of any fee or leasehold interest in real property, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports notice thereof and, if requested by the Administrative Agent, legal opinionsa Deed of Trust and other Collateral Documents in relation thereto.
(e) Notwithstanding the foregoing provisions of this Section, at any time prior to the consummation of the Grace Asset Purchase when no Default or Event of Default has occurred and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on remains continuing, the Closing Date or that such Subsidiary would Borrower may form an Issuance Subsidiary, which shall not be required to deliver pursuant guarantee the Obligations or to Section 5.13 with grant Liens securing the Obligation in respect to of any proved Oil and Gas Properties. In addition, within five (5) Business Days after of its Property until the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery consummation of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of Grace Asset Purchase or its merger or consolidation with the Borrower or any Subsidiary of the applicable Loan PartyBorrower, provided that the Issuance Subsidiary shall not engage in any business other than the issuance of Senior Subordinated Notes, the investment of the proceeds thereof (and any additional amounts contributed to the Issuance Subsidiary by the Borrower in accordance with Section 7.02(d)) in the Escrow Account, and shall be taken to activities ancillary thereto pending the reasonable satisfaction consummation of the Administrative AgentGrace Asset Purchase.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Herbst Gaming Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary (other than (a) any Insurance Subsidiary, (b) any Subsidiary of an Insurance Subsidiary, (c) any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License (or such later date as agreed to in writing by the Administrative Agent and the Required Lenders in their sole discretion) or (d) a Loan PartySubsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement Agreement, in substantially the form and substance reasonably satisfactory of Annex I attached to the Administrative AgentGuaranty and Security Agreement, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the reasonable request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan DocumentsDocuments (it being understood and agreed that, with respect to any Subsidiary that is not organized under the laws of the United States, any state thereof or the District of Columbia, this clause (i) shall include the granting of Liens and taking of all perfection actions under the local laws of such Subsidiary’s jurisdiction of formation as may be reasonably required by the Administrative Agent and the Required Lenders), (ii) to grant Liens in favor of the Administrative Agent in all interests in Real Estate (other than Excluded Property) to the proved Oil and Gas Properties of such Subsidiary extent required by Section 5.13, by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15, Administrative Agent and the Required Lenders shall reasonably require and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a direct Subsidiary of a Loan PartyParty (or such later date as agreed to in writing by the Administrative Agent and the Required Lenders in their sole discretion), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary directly owned by a Loan Party (other than Excluded Property) to the Administrative Agent as security for the Obligations Obligations, by executing and delivering a supplement to the Guaranty and Security Agreement Agreement, substantially in the form of Annex III attached to the Guaranty and substance satisfactory Security Agreement, to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (other than Excluded Property) to the Administrative Agent, together with appropriate powers executed in blank; provided that (1) if such Person that becomes a Subsidiary is an Insurance Subsidiary, a Subsidiary of an Insurance Subsidiary or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, this requirement to pledge all of the Capital Stock of such Person shall not apply only to the extent the pledge thereof is (or would be) deemed a change of control of such Person or is (or would be) otherwise prohibited by applicable law or regulations, (2) in the case of any Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, it is understood and agreed that until such approval is obtained, such Subsidiary shall not transact business or hold any material assets and (3) to the extent and for so long as such Person that becomes a Subsidiary is a Subsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders, this requirement to pledge all of the Capital Stock of such Person shall not apply; provided, that, to the extent that such pledge of such Capital Stock (or the pledge of any portion of such Capital Stock) would no longer result in an adverse Tax liability (which is not de minimis), such pledge (or the pledge of any portion of such Capital Stock, as applicable) shall be promptly given. For the avoidance of doubt, (x) in no event shall any Insurance Company, Subsidiary of an Insurance Company, any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License or any Subsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders, be required to become a Subsidiary Loan Party, a Loan Party or a Guarantor hereunder; provided, however, for the avoidance of doubt and notwithstanding anything to the contrary herein, in the case of the Persons described in clauses (1) and (3) immediately above, each such Person shall be subject to the applicable covenants contained herein and (y) as of the Closing Date and thereafter, the Capital Stock of RRC shall be pledged and perfected under the laws of the Cayman Islands and the Capital Stock of each other Insurance Subsidiary shall be pledged and perfected under the applicable laws of the United States.
(ba) The Borrower hereby agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) of this Section (to the extent that such Lien can be perfected by the execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens (other than Liens expressly permitted by Section 7.2). All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Term Loan Agreement (Root, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved such Oil and Gas Properties of such Subsidiary as requested by the Administrative Agent by executing and delivering to the Administrative Agent such Mortgages, to Mortgages as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ring Energy, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, an acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to of the formation creation or acquisition of such Domestic Subsidiary and (y) within five thirty (530) Business Days after such Person becomes a Subsidiary of a Loan Partydays thereafter, the Borrower shall cause such Subsidiary Person (i) to become join the Guaranty and Security Agreement as a new Guarantor Subsidiary Loan Party by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement, (ii) to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to joining the Guaranty and Security Agreement, executing and delivering Copyright Security Agreement, Patent Security Agreement in form and substance reasonably satisfactory Trademark Security Agreement (as applicable) and to the Administrative Agentfile, and authorizing and delivering, or at the request of the Administrative AgentAgent to authorize the filing of, all such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (iiiii) to grant Liens in favor of the Administrative Agent in the proved Oil all fee ownership and Gas Properties of leasehold interests in Real Estate, (iv) if such Domestic Subsidiary by executing and delivering to the Administrative Agent such Mortgagesowns Capital Stock in another Person, to the extent necessary become a party to maintain compliance with Section 5.15a pledge agreement to pledge such Capital Stock, and (iiiv) to deliver all such other documentation (including, including without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agentreports, legal opinions, and certified organizational documents) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesDate. In addition, within five thirty (530) Business Days days after the date any such Person becomes a Subsidiary of a Loan Partythe Borrower, the Borrower shall, or shall cause the applicable Loan Party Subsidiary owning such Person, to (i) pledge all of the Capital Stock of such Subsidiary Person to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement pledge agreement, in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, to deliver the original stock certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate stock powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary of the Borrower, whether pursuant to an acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) no later than sixty (60) days after such Person becomes a Foreign Subsidiary, or if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed sixty (60) additional days, the Borrower shall, or shall cause any of its Domestic Subsidiary owning such Person, (i) to pledge all of the Capital Stock of such Foreign Subsidiary (or if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to sixty-five percent (65%) of the voting Capital Stock and one hundred percent (100%) of the non-voting Capital Stock owned by the Borrower or any Domestic Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent and the Required Lenders, (ii) to deliver the original stock certificates evidencing such pledged Capital Stock, together with appropriate stock powers executed in blank and (iii) to deliver all such other documentation (including without limitation, lien searches, legal opinions, landlord waivers, and certified organizational documents) and to take all such other actions as Borrower or such Domestic Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Foreign Subsidiary had been a Foreign Subsidiary on the Closing Date.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental officesSection 5.10, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection clause (a) and (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements)b) above, free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Encumbrances. All actions to be taken pursuant to this Section 5.10 shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(cd) In To the event thatextent otherwise permitted hereunder, subsequent if any Loan Party proposes to acquire a fee ownership in Real Estate after the Closing Date, any Person becomes a subsidiary it shall at the time of a Loan Party, whether pursuant such acquisition provide to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as all Real Estate Documents requested by the Administrative Agent may permit granting the Administrative Agent a first priority Lien on such Real Estate, together with environmental audits, mortgage title insurance policies, real property survey, opinion(s) and, if required by the Administrative Agent, supplemental casualty insurance and flood insurance, and such other documents, instruments or agreements reasonably requested by the Administrative Agent, in its sole discretion). Notwithstanding anything herein each case, in form and substance reasonably satisfactory to the contraryAdministrative Agent.
(e) No Loan Party will maintain tangible Collateral with a book value of more than $7,500,000 in the aggregate at any location not owned by a Loan Party unless it shall first have provided to the Administrative Agent a copy of such lease and a landlord's agreement or bailee letter, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes as applicable, from the landlord of any indentureleased property or bailee with respect to any warehouse or other location where such Collateral will be stored or located, credit which agreement or similar agreement that contains letter shall be reasonably satisfactory in form and substance to the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryAdministrative Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (FGX International Holdings LTD)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a wholly-owned Subsidiary of the Borrower (including any Subsidiary that is not wholly-owned solely as a Loan Partyresult of directors’ qualifying shares required by applicable law), whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five thirty (530) Business Days days after such Person becomes a wholly-owned Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent), the Borrower shall cause such Subsidiary (i) to become a new Guarantor (unless such Subsidiary (1) is a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor, (2) is prohibited by law from becoming a Guarantor, (3) is a Subsidiary of a Foreign Subsidiary that is not required to be a Guarantor or (4) the primary assets of such Subsidiary are Capital Stock or Indebtedness of a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor) and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents; provided, that no Domestic Loan Party shall be required to take any action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest in any assets of the Borrower or Loan Party which assets are either located outside of the United States or would require action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest therein and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) reasonably requested by Administrative Agent and consistent with the documents delivered by the Loan Parties on or prior to take all such other actions as such Subsidiary would have been required to deliver and take the Closing Date pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties4.01(a)(iii). In addition, within five thirty (530) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan PartyParty (or such later date as agreed to by the Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (if any) to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery ; provided that in no event shall any Capital Stock of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to any non-wholly owned Domestic Subsidiary be pledged pursuant to subsection (a) (hereunder to the extent that the granting of a security interest in such Lien can be perfected Capital Stock is prohibited by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Partyjoint-venture, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event thatshareholder, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement stock purchase or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiaryagreement.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party(other than an Excluded Subsidiary), whether pursuant to formation, acquisition Acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan Party(or such longer period as may be agreed to by the Administrative Agent in writing), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties all fee ownership interests in all Real Estate with a fair market value in excess of such Subsidiary $7,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 45 days after the date any Person becomes a Subsidiary of a Loan Party(or such longer period as may be agreed to by the Administrative Agent in writing), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) If, at any time and from time to time after the Closing Date, Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in the definition of “Immaterial Subsidiary” comprise in the aggregate more than 5.07.5% of Consolidated Total Assets or more than 5.07.5% of Consolidated EBITDA, in each case, as of the end of the most recently ended Fiscal Quarter for which financial statements have been delivered (or were required to be delivered) pursuant to Section 5.1(b), then the Borrower shall, not later than five (5) Business Days after the date by which financial statements for such Fiscal Quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Subsidiaries as no longer being an “Immaterial Subsidiary” (to the extent that, as a result of such designation, the remaining Immaterial Subsidiaries constitute less than each of the thresholds set forth in this subsection (d) in the aggregate) and (ii) comply with the provisions of subsection (a) of this Section applicable to each such Subsidiary (subject to the time periods set forth in this Section 5.12 which shall run from the date that any Subsidiary is so designated as no longer being an Immaterial Subsidiary hereunder).
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Within 75 days after the end of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms second Fiscal Quarter of Section 5.12(c). In the event thateach Fiscal Year of Ensign (or, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify if the Administrative Agent and determines in its sole discretion that the Lenders Borrower is working in good faith, such longer period as the Administrative Agent shall permit not less than ten (10) Business Days prior to exceed 60 additional days), commencing with the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Party2020 Fiscal Year, the Borrower shall will (i) cause such each Domestic Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its
(b) Within 75 days after the end of the second Fiscal Quarter of each Fiscal Year of Ensign (or, if the Administrative Agent determines in its personal property sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days), commencing with the 2020 Fiscal Year, the Borrower shall (i) cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by executing and delivering a Loan Party to the Administrative Agent a supplement as security for the Obligations pursuant to the Guaranty and Security Agreement Agreement; provided that, in form the case of any such Foreign Subsidiary that is a CFC and substance reasonably satisfactory any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass- Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens together with appropriate powers executed in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, blank and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five Administrative Agent may reasonably request.
(5c) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to If (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security Total Leverage Ratio for the Obligations by executing and delivering a supplement to four consecutive Fiscal Quarter period ending on the Guaranty and Security Agreement in form and substance satisfactory to end of any Fiscal Quarter, commencing with the Administrative AgentFiscal Quarter ending on or about December 31, 2019, is greater than 2.00:1.00 and (ii) if as of the Capital Stock end of such Fiscal Quarter either (x) the aggregate assets of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary is certificated, deliver Loan Parties as of such date are in excess of 20.0% of the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.total assets of Ensign and its Subsidiaries determined on a consolidated basis as of
(bd) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a), (b) and (c) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent7.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Collateral Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such later period of time as the Required Lenders may agree) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property by executing and delivering to the Administrative Collateral Agent a supplement joinder to the Guaranty and Security Agreement in the form and substance reasonably satisfactory attached as Annex I to the Administrative AgentSecurity Agreement, and authorizing and delivering, at the request of the Administrative AgentCollateral Agent or the Required Lenders, such UCC financing statements or similar instruments required by the Administrative Collateral Agent or the Required Lenders to perfect the Liens in favor of the Administrative Collateral Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Collateral Agent in the proved Oil and Gas Properties of such Subsidiary all interests in Material Real Estate by executing and delivering to the Administrative Collateral Agent and the Lenders such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Collateral Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five 30 days (5or such later period of time as the Required Lenders may agree) Business Days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock Equity Interests of such Domestic Subsidiary to the Administrative Collateral Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative AgentCollateral Agent and the Required Lenders, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock Equity Interests to the Administrative AgentCollateral Agent or the First Lien Agent as bailee for the Collateral Agent pursuant to the Intercreditor Agreement, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan PartyForeign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Collateral Agent and the Borrower elects for Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Required Lenders determine in their sole discretion that the Borrower is working in good faith, such longer period as the Required Lenders shall permit not to become an Unrestricted exceed 60 additional days, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Equity Interests of such Foreign Subsidiary under this (or, if the pledge of all of the voting Equity Interests of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Equity Interests and 100% of the issued and outstanding non-voting Equity Interests of such Foreign Subsidiary, as applicable) to the Collateral Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Collateral Agent and the Required Lenders, (ii) deliver the original certificates evidencing such pledged Equity Interests to the Collateral Agent or the First Lien Agent as bailee for the Collateral Agent pursuant to the Intercreditor Agreement, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Collateral Agent or the Required Lenders may reasonably request.
(c) Prior to the date that Triad shall cease to be the immediate parent company of the Borrower, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior cause its immediate parent company to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes pledge all of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee its Equity Interests of the obligations thereunder Borrower to the Collateral Agent as security for the Obligations by executing and delivering a pledge agreement to the Collateral Agent in a form substantially similar to the Pledge Agreement, and (ii) deliver any original certificates evidencing such pledged Equity Interests to the Borrower shall not designate any Subsidiary Collateral Agent or the First Lien Agent as an Unrestricted Subsidiarybailee for the Collateral Agent pursuant to the Intercreditor Agreement, together with appropriate powers executed in blank.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Magnum Hunter Resources Corp)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such later period of time as the Administrative Agent may agree) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in Material Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five 30 days (5or such later period of time as the Administrative Agent may agree) Business Days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock Equity Interests of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock Equity Interests to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan PartyForeign Subsidiary, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Equity Interests of such election not less than ten Foreign Subsidiary (10or, if the pledge of all of the voting Equity Interests of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Equity Interests and 100% of the issued and outstanding non-voting Equity Interests of such Foreign Subsidiary, as applicable) Business Days prior to the formation or acquisition of Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such Unrestricted Subsidiary pledged Equity Interests to the Administrative Agent, together with appropriate powers executed in blank and (or iii) deliver all such shorter period of time other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein reasonably request.
(c) Prior to the contrarydate that Triad shall cease to be the immediate parent company of the Borrower, the Borrower shall cause its immediate parent company to (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes pledge all of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee its Equity Interests of the obligations thereunder Borrower to the Administrative Agent as security for the Obligations by executing and delivering a pledge agreement to the Administrative Agent in form and substance substantially similar to the Pledge Agreement, and (ii) deliver any original certificates evidencing such pledged Equity Interests to the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryAdministrative Agent, together with appropriate powers executed in blank.
Appears in 1 contract
Samples: First Lien Credit Agreement (Magnum Hunter Resources Corp)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, (i) any Person becomes Restricted Subsidiary (other than an Excluded Subsidiary) is formed or acquired (including by Division), (ii) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, (iii) any Restricted Subsidiary ceases to be an Excluded Subsidiary or (iv) the Borrower, at its option, elects to cause a Domestic Subsidiary to become a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 60 days (5or such longer period as the Administrative Agent agrees) Business Days after DB1/ 110470318.9 106 such Person becomes Restricted Subsidiary is formed or acquired, such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, such Restricted Subsidiary of a Loan Partyceases to be an Excluded Subsidiary or the Borrower has made such election, as applicable, the Borrower shall cause such Restricted Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to the extent required, to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in fee owned Real Estate (subject to Permitted Encumbrances) by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Restricted Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Restricted Subsidiary had been a Loan Party on the Closing Date or that such Restricted Subsidiary would be required to deliver pursuant to Section 5.13 5.11 with respect to any proved Oil and Gas Propertiesfee owned Real Estate; provided, however, no Foreign Subsidiary shall be required to become a Guarantor or grant Liens in its personal property or fee owned Real Estate. In addition, within five 30 days (5or such longer period as the Administrative Agent agrees) Business Days after the date any Person becomes a Subsidiary of a Loan PartyRestricted Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Restricted Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, or ceases to be an Excluded Subsidiary, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 90 days after the date such Person becomes a Domestic Subsidiary (or, in the case of a Loan Partyany Domestic Subsidiary with no assets, within 180 days after such date) or ceases to be an Excluded Subsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, Documents and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, negative pledges and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 90 days after the date any Person becomes a Domestic Subsidiary (or, in the case of a Loan Partyany Domestic Subsidiary with no assets, within 180 days after such date) or ceases to be an Excluded Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 66% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Ensign Group, Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Domestic Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent in its sole discretion), the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in fee-owned Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Domestic Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent in its sole discretion), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a wholly-owned Material Subsidiary of the Borrower (including any Material Subsidiary that is not wholly-owned solely as a Loan Partyresult of directors’ qualifying shares required by applicable law), whether pursuant to formation, acquisition or otherwiseotherwise (including any Immaterial Subsidiaries that cease to qualify as Immaterial Subsidiaries), (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five sixty (560) Business Days days after such Person becomes a wholly-owned Subsidiary of a Loan Party(or such later date as agreed to by the Administrative Agent), the Borrower shall cause such Subsidiary (i) to become a new Guarantor (unless such Subsidiary (1) is a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor, (2) is prohibited by law from becoming a Guarantor, (3) is a Subsidiary of a Foreign Subsidiary that is not required to be a Guarantor or (4) the primary assets of such Subsidiary are Capital Stock or Indebtedness of a Foreign Subsidiary and adverse tax consequences could reasonably be expected to result from making such Subsidiary a Guarantor) and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents; provided, that no Domestic Loan Party shall be required to take any action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest in any assets of the Borrower or Loan Party which assets are either located outside of the United States or would require action under the law of any non-U.S. jurisdiction in order to create or perfect a security interest therein and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and legal opinions) reasonably requested by Administrative Agent and consistent with the documents delivered by the Loan Parties on or prior to take all such other actions as such Subsidiary would have been required to deliver and take the Closing Date pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties4.01(a)(iii). In addition, within five sixty (560) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan PartyParty (or such later date as agreed to by the Administrative Agent), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by a Loan Party to the Administrative Agent as security for the Obligations by 13380177v4 executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (if any) to the Administrative Agent, together with appropriate powers executed in blank; provided that in no event shall any Capital Stock of any non-wholly owned Domestic Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock, if any, to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request provided, that Liens on the Capital Stock of (or other ownership interest in) a Foreign Subsidiary that are required to be pledged shall be documented under U.S. law; provided, further that in no event shall any Capital Stock of any non-wholly owned Foreign Subsidiary be pledged hereunder to the extent that the granting of a security interest in such Capital Stock is prohibited by the applicable joint-venture, shareholder, stock purchase or similar agreement.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of (other than an Excluded Subsidiary) or an Unrestricted Subsidiary is designated as a Loan PartyRestricted Subsidiary or an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 4560 days (5or such longer period as the Administrative Agent may permit) Business Days after such Person becomes a Subsidiary of or is designated a Loan PartyRestricted Subsidiary or ceases to be an Immaterial Subsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor by executing and delivering to the Administrative Agent a joinder to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, Documents and (iii) to deliver all such other documentation (including, without limitation, certified organizational documentsOrganization Documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, searches and customary legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 on the Closing Date if such Subsidiary had been a Loan Party on the Closing Date or that Date, in every such case to the extent reasonably requested by the Administrative Agent; provided, that, if the portion of Consolidated EBITDA attributable to any such Subsidiary would or Subsidiaries, individually or in the aggregate, is less than 10% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis), the Borrower shall not be required to deliver pursuant to any legal opinion under this Section 5.13 with respect to any proved Oil and Gas Properties5.12. In addition, within five 4560 days (5or such longer period as the Administrative Agent may permit) Business Days after the date any Person becomes a Domestic Subsidiary of (other than a Domestic Foreign Holdco), to the extent such Domestic Subsidiary is owned directly by any Loan PartyParty and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), the Borrower shall, or shall cause the applicable Loan Party to shall (i) pledge all of the Capital Stock of such Domestic Subsidiary owned by such Loan Party to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Domestic Foreign Holdco, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent thereof and (y) to the extent such Foreign Subsidiary or Domestic Foreign Holdco is owned directly by any Loan Party and constitutes a Restricted Subsidiary and does not constitute an Immaterial Subsidiary (to the extent such Immaterial Subsidiary is not a Guarantor), within 4560 days (or such longer period as the Administrative Agent may permit) after such Person becomes a Foreign Subsidiary or Domestic Foreign Holdco, the applicable Loan Party shall (i) pledge all of the Capital Stock (but, in any event, not to exceed 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock) of such Foreign Subsidiary or Domestic Foreign Holdco, as applicable, owned by such Loan Party, to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority (subject to Liens permitted by Section 7.2) perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or, if required to be delivered, possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(cd) In the event that, subsequent Notwithstanding anything herein to the Closing Datecontrary or in any other Loan Document, (i) the Borrower and the Guarantors shall not be required create or perfect a security interest under the laws of any Person becomes non-U.S. jurisdiction or to create or perfect a subsidiary security interest in assets located or titled outside the U.S. or to reimburse or indemnify the Administrative Agent for any costs or expenses incurred in connection with the taking of any of the foregoing actions in any non-U.S. jurisdiction and (ii) perfection shall not be required with respect to the following: (A) commercial tort claims with a claim value of less than $4,000,000; (B) letter-of-credit rights with a face amount less than $4,000,000 (other than those to which perfection of the security interest in such Collateral is accomplished solely by the filing of a Loan Party, whether pursuant to formation, acquisition or otherwise, and UCC financing statement); provided that neither the Borrower elects for such Person nor any Guarantor shall be required to become establish the Administrative Agent’s “control” (within the meaning of Section 9-107 of the UCC) over any letter-of-credit rights with a face amount greater than or equal to $4,000,000 except upon the Administrative Agent’s request during the existence of an Unrestricted Subsidiary under this Agreement, the Borrower shall notify Event of Default; (C) those assets as to which the Administrative Agent and the Borrower reasonably agree in writing that the costs of obtaining such perfection are excessive in relation to the value to the Lenders of such election not less than ten (10) Business Days prior the security to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder afforded thereby and (iiD) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryExcluded Account.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary Diligently pursue the approval of the Nevada Gaming Commission to the pledge of the Equity Interests in each of its Subsidiaries to the Administrative Agent pursuant to the Pledge Agreement and, promptly upon receipt thereof and in any event within 90 days following the Closing Date execute and deliver the Pledge Agreement to the Administrative Agent, together with stock certificates representing 100% of the Equity Interests held by Borrower or a Subsidiary and its Subsidiaries in their respective direct Subsidiaries (to the extent certificated), together with appropriate stock powers (which stock certificates shall be deemed a Subsidiary unless designated maintained by Borrower as an Unrestricted Subsidiary the Administrative Agent in accordance with the terms State of Section 5.12(cNevada). In ;
(b) Notify the event that, subsequent to Administrative Agent at the Closing Date, time that any at the time that any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formationand promptly thereafter (and in any event within thirty days), acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after cause such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary to (i) to become a new Guarantor execute and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering deliver to the Administrative Agent a supplement Guaranty or a joinder to a Guaranty, as the Guaranty Administrative Agent shall deem appropriate for such purpose, and Security Agreement in form and substance reasonably satisfactory (ii) deliver to the Administrative Agent, and authorizing and delivering, at the request Agent Collateral Documents of the Administrative Agenttypes referred to in Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, such UCC financing statements or similar instruments required by among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clauses (i) and (ii));
(c) Notify the Administrative Agent at the time of acquisition or the formation of any Subsidiary, cause to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) be delivered to grant Liens in favor of the Administrative Agent in pledge all of the proved Oil Equity Interests held by Borrower and Gas Properties of its Subsidiaries in such Subsidiary by executing and delivering to Subsidiary;
(d) Notify the Administrative Agent such Mortgagesat the time of the acquisition by Borrower or any of its Subsidiaries of any fee or leasehold interest in real property, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports notice thereof and, if requested by the Administrative Agent, legal opinionsa Deed of Trust and other Collateral Documents in relation thereto.
(e) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on Within 90 days following the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 Date, provide the Administrative Agent with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all landlord consent and non-disturbance agreements from Centennial Acquisitions and Terrible Xxxxxx, Inc. in respect of the Capital Stock Searchlight location, (ii) a Deed of such Subsidiary Trust in respect of all interests of the Borrower and its Subsidiaries in the Searchlight location, (iii) an ALTA policy of title insurance insuring the deed of trust referred to in clause (ii), and (iv) a landlord consent and non-disturbance agreement from the Administrative Agent as security for 1993 Xxxxxx Xxxxxxxxx Revocable Trust in respect of the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement Xxxxxxxxx location, in each case in form and substance satisfactory reasonably acceptable to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Herbst Gaming Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party(other than an Excluded Subsidiary), whether pursuant to formation, acquisition Acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan Party(or such longer period as may be agreed to by the Administrative Agent in writing), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties all fee ownership interests in all Real Estate with a fair market value in excess of such Subsidiary $7,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 45 days after the date any Person becomes a Subsidiary of a Loan Party(or such longer period as may be agreed to by the Administrative Agent in writing), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) If, at any time and from time to time after the Closing Date, Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in the definition of “Immaterial Subsidiary” comprise in the aggregate more than 7.5% of Consolidated Total Assets or more than 7.5% of Consolidated EBITDA, in each case, as of the end of the most recently ended Fiscal Quarter for which financial statements have been delivered (or were required to be delivered) pursuant to Section 5.1(b), then the Borrower shall, not later than five (5) Business Days after the date by which financial statements for such Fiscal Quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Subsidiaries as no longer being an “Immaterial Subsidiary” (to the extent that, as a result of such designation, the remaining Immaterial Subsidiaries constitute less than each of the thresholds set forth in this subsection (d) in the aggregate) and (ii) comply with the provisions of subsection (a) of this Section applicable to each such Subsidiary (subject to the time periods set forth in this Section 5.12 which shall run from the date that any Subsidiary is so designated as no longer being an Immaterial Subsidiary hereunder).
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after on the date that such Person becomes a Subsidiary of a Loan Party, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property by executing and delivering to the Administrative Collateral Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Collateral Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Collateral Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Collateral Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Collateral Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Collateral Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Collateral Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. POST-CLOSING DATE REAL ESTATE MATTERS.
(ai) Any newly acquired or formed subsidiary Within thirty (30) days of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition creation of such any newly-formed Subsidiary permitted in accordance with Section 11.16 hereof and (y) within five the acquisition of any Subsidiary permitted by Section 11.4(c) (5) Business Days after or such Person becomes a Subsidiary of a Loan Partyother date as may be specified in any consent executed pursuant to Section 11.4(c)), the Borrower shall cause such Subsidiary (i) to become a new Guarantor be executed and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering delivered to the Administrative Agent (A) a supplement to Joinder Agreement such that such Subsidiary shall become a Borrower hereunder, a grantor under the Guaranty and Security Agreement and an issuer under the Pledge Agreement (and, if applicable, the parent of such Subsidiary shall become a pledgor under the Pledge Agreement), (B) subject to clause (ii) below, such other applicable Security Documents in form and substance reasonably satisfactory to the Administrative AgentAgent such that the assets of such Subsidiary shall become Collateral for the Obligations, and authorizing and delivering, at the request of (C) favorable legal opinions addressed to the Administrative Agent, Agent and Lenders in form and substance satisfactory thereto with respect to such UCC financing statements or similar instruments required supplements and agreements and (D) such other documents and closing certificates as consistent with Article VI as may be requested by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor within sixty (60) days after the joinder of such Subsidiary, a Mortgage for each parcel of real property owned or leased thereby at the time of such joinder.
(b) Within sixty (60) days of the Administrative Agent consummation by the Company or any Subsidiary in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance accordance with Section 5.15, and (iii) to deliver all such other documentation 11.17 hereof of any lease (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested in connection with any assignment or assumption of an existing lease to or by the Administrative Agent, legal opinionsa new landlord) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to real property at which any proved Oil Switch or any material Telecommunications Equipment is or is to be located, owned or leased by the Company or any Subsidiary cause to be executed and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary delivered to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative AgentAgent (i) (A) a copy of the lease and all related documents, (B) a legal description of the premises, (C) if such lease is mortgagable, a Mortgage with respect to such lease, (D) a landlord consent and (ii) if to the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to extent requested by the Administrative Agent, together with appropriate powers executed in blank.
(bA) The Borrower agrees thata mortgagee estoppel letter, following (B) UCC-1 Financing Statements and any additional filings or recordings or actions necessary to perfect the due execution and delivery security interests of the Lenders in all Collateral Documents required related to be executed and delivered by this Sectionsuch premises, when UCC financing statements in appropriate form are filed in (C) favorable opinions of counsel to the appropriate governmental offices, Company addressed to the Administrative Agent shall have a validand the Lenders with respect to such Mortgages and security interests, first priority perfected Lien on the property required to be pledged pursuant to subsection (aD) satisfactory title searches, recorded memoranda of lease and flood hazard certifications and (to the extent that such Lien can be perfected E) each additional document, instrument or other item of information reasonably requested by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In connection with the event execution, extension, amendment, modification, renegotiation, replacement or renewal by the Company or any Subsidiary of any Interconnection Agreement after the Closing Date that, subsequent in the reasonable judgment of the Company, may require payments by the Company and its Subsidiaries or involves amounts in excess of $2,000,000, in the aggregate (which execution, extension, amendment, modification, renegotiation, replacement or renewal shall have been previously approved in writing by the Administrative Agent if the result of such execution, extension, amendment, modification, renegotiation, replacement or renewal in the reasonable judgment of the Company may have an adverse impact on the Company and its Subsidiaries in excess of $2,000,000 in the aggregate), use their reasonable best efforts to cause to be executed and delivered to the Administrative Agent at the time such Interconnection Agreement, extension, amendment, modification, renegotiation, replacement or renewal is entered into (or as soon as reasonably practicable thereafter), a consent agreement regarding the Lien of the Administrative Agent in form and substance reasonably satisfactory thereto and each additional document, instrument or other item of information reasonably requested by the Administrative Agent.
(d) In connection with the execution by the Company or any Subsidiary (with the prior written consent of the Administrative Agent) of any IRU requiring annual payments in excess of $500,000, cause to be delivered to the Administrative Agent at the time such IRU is entered into (i) a certified copy of such IRU, (ii) a revised SCHEDULE 7.1(T), reflecting such IRU and (iii) each additional document, instrument or other item of information related thereto reasonably requested by the Administrative Agent.
(e) Simultaneously with the opening of any Deposit Account or any "securities account" (as defined in the UCC) by the Company or any of its Subsidiaries, cause to be executed and delivered to the Administrative Agent in form and substance reasonably satisfactory thereto a control agreement or similar agreement permitting the Administrative Agent to obtain "control" (as such term is now or hereafter defined in the UCC) over such Deposit Account or such "securities account" (as defined in the UCC).
(f) Within 60 days after the Closing Date, any Person becomes a subsidiary the Company shall have caused to be furnished to the Administrative Agent, at the Company's expense, with respect to each Mortgage in existence on the Closing Date, (A) duly executed counterparts of a Loan Party, whether pursuant modifications to formation, acquisition or otherwise, such Mortgage in form and the Borrower elects for such Person substance satisfactory to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent (the originals of which shall have been forwarded on the Closing Date for recordation in the appropriate jurisdiction) and (B) satisfactory flood certifications and title searches showing recorded memoranda of lease for all leases purported to be covered in the Lenders Mortgages (and, as to any memoranda of lease not so shown, the Company agrees to cause to be duly recorded appropriate memoranda of lease as promptly as practicable thereafter (but in any event within 60 days thereafter)).
(g) Promptly deliver from time to time such election not less than ten (10) Business Days prior additional Security Documents to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein upon the request of the Required Lenders with respect to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes assets of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee such Person not subject to an existing Lien in favor of the obligations thereunder Administrative Agent for the ratable benefit of itself and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryLenders.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary (other than an Immaterial Subsidiary, a CFC or any Subsidiary of a Loan PartyCFC), whether pursuant to formation, acquisition or otherwise, (x) the Borrower Holdings shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan Party, the Borrower Holdings shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent (or a new security agreement in form and substance reasonably satisfactory to the Administrative Agent), executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all fee ownership interests in Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Subsidiary (other than a CFC or any Subsidiary of a Loan PartyCFC), the Borrower Holdings shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent (or other pledge agreement in form and substance reasonably satisfactory to the Administrative Agent), and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank. Notwithstanding the terms of this Section 5.12(a) or any other term in this Agreement or any other Loan Document to the contrary, no Loan Party shall be required to pledge its ownership interest in any Capital Stock of any joint venture that is not a Subsidiary if the grant of a security interest therein would violate any organizational document of such joint venture.
(b) The Borrower In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary that is a CFC, whether pursuant to formation, acquisition or otherwise, (x) Holdings shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that Holdings is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, Holdings shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock units, or other evidence of ownership, of such Foreign Subsidiary, as applicable; provided that, in no event shall any such Foreign Subsidiary that is a CFC be required to grant or pledge any interest in the Capital Stock, or other evidence of ownership, of any Subsidiary of any such Foreign Subsidiary) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent; provided that no pledge agreement governed by the applicable law of any non-U.S. jurisdiction shall be required for any Foreign Subsidiary that is not a Material Foreign Subsidiary, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) if such Foreign Subsidiary is a Material Foreign Subsidiary, deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) Holdings agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party(other than an Excluded Subsidiary), whether pursuant to formation, acquisition Acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartySubsidiary, the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties all fee ownership interests in all Real Estate with a fair market value in excess of such Subsidiary $7,500,000 by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 45 days after the date any Person becomes a Subsidiary of a Loan PartySubsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) If, at any time and from time to time after the Closing Date, Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in the definition of “Immaterial Subsidiary” comprise in the aggregate more than 5.0% of Consolidated Total Assets or more than 5.0% of Consolidated EBITDA, in each case, as of the end of the most recently ended Fiscal Quarter for which financial statements have been delivered (or were required to be delivered) pursuant to Section 5.1(b), then the Borrower shall, not later than five (5) Business Days after the date by which financial statements for such Fiscal Quarter are required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more of such Subsidiaries as no longer being an “Immaterial Subsidiary” (to
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent7.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary As a condition to the inclusion of any Unencumbered Pool Property in the Unencumbered Pool Value, the REIT Guarantor and the Borrower or a shall (a) cause (i) the Subsidiary that owns such Unencumbered Pool Property (which shall be deemed a Person organized under the laws of any state of the United States or the District of Columbia), if not already a Guarantor, to become a Guarantor hereunder and a party to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement and (ii) each Subsidiary that is not a Loan Party that owns, directly or indirectly, any Capital Stock of any Subsidiary which becomes a Guarantor pursuant to clause (i) above to become a Guarantor hereunder and a party to the Guaranty and Security Agreement and to xxxxx x Xxxx in such Capital Stock pursuant to the Guaranty and Security Agreement through the execution and delivery to the Administrative Agent of a Joinder Agreement (provided that, unless designated such Subsidiary owns an Unencumbered Pool Property, it shall not be required to xxxxx x Xxxx on, or security interest in, any of its assets or property other than any such Capital Stock of other Subsidiary Loan Parties), in each case on or before the date on which a Property owned by Borrower any such Subsidiary is initially included as an Unrestricted Unencumbered Pool Property; and (b) cause each such Subsidiary to deliver such other documentation as the Administrative Agent may reasonably request in accordance connection with the terms foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of Section 5.12(csuch Subsidiary, favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner). In , all of which shall be reasonably satisfactory to the event that, subsequent to Administrative Agent.
(b) Within 15 Business Days of any Person (other than an Excluded Subsidiary) becoming a Material Subsidiary after the Closing Date, and within 15 Business Days of any Person becomes Excluded Subsidiary that was a Material Subsidiary of ceasing to be subject to the restriction which prevented it from becoming a Loan PartyGuarantor as otherwise required under this Agreement, whether pursuant to formation, acquisition or otherwise, (x) the REIT Guarantor and the Borrower shall notify (i) cause such Subsidiary to become a Guarantor hereunder through the execution and delivery to the Administrative Agent of a Joinder Agreement and (ii) cause such Subsidiary to deliver such other documentation as the Lenders not less than ten Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of such Subsidiary, favorable opinions of counsel to such Subsidiary (10) Business Days prior which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above in a customary manner), all of which shall be reasonably satisfactory to the formation or acquisition of such Subsidiary and (y) Administrative Agent. Notwithstanding anything else herein to the contrary, within five (5) 15 Business Days after the Closing Date (or such Person becomes a Subsidiary of a Loan Partylater date as the Administrative Agent may agree in its sole discretion), the REIT Guarantor and the Borrower shall cause such Subsidiary (i) CHCT Indiana, LLC and CHCT Michigan, LLC to become a new Guarantor hereunder through the execution and delivery to grant Liens in favor of the Administrative Agent in all of a Joinder Agreement and cause such entities to deliver such other documentation required by this Section 5.12(b).
(c) The Borrower may, at its personal property option, cause any Subsidiary that is not already a Guarantor to become a Guarantor by executing and delivering to the Administrative Agent a supplement Joinder Agreement and the other items required to be delivered under the Guaranty immediately preceding clauses (a) and Security Agreement (b), as applicable.
(d) Notwithstanding the foregoing, no Subsidiary may become a Guarantor in form and substance reasonably satisfactory to accordance with the Administrative Agent, and authorizing and delivering, at the request terms of this Section unless (i) such Subsidiary is a Subsidiary of the Administrative Agent, Borrower and (ii) the Lenders have received from the Borrower any such UCC financing statements or similar instruments required documentation and other information requested by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under or any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take Lender pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The Borrower agrees that, following the due execution and delivery of the Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery of the Collateral Documents and/or recording of the UCC financing statements), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be 10.13 at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) least three Business Days prior to the formation or acquisition proposed effectiveness of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein Subsidiary’s agreement to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is become a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted SubsidiaryGuarantor.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of a Loan Partyor an Excluded Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, (xi) the Borrower shall promptly notify the Administrative Collateral Agent and the Lenders not less than ten thereof, (10) Business Days prior to the formation or acquisition of such Subsidiary and (yii) within five thirty (530) Business Days days after such Person becomes a Domestic Subsidiary of a Loan Partyor such Person ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall cause such Domestic Subsidiary (iother than an Excluded Subsidiary) to become a new Guarantor and to grant Liens in favor of the Administrative Collateral Agent in all of its personal property that would otherwise constitute Collateral by executing and delivering to the Administrative Collateral Agent a supplement to Joinder Agreement substantially in the Guaranty and Security Agreement form of Exhibit 5.12 or otherwise in form and substance reasonably satisfactory to the Administrative Collateral Agent, and authorizing and delivering, at the request of the Administrative Collateral Agent, such UCC financing statements or similar instruments required by the Administrative Collateral Agent to perfect the Liens in favor of the Administrative Agent Collateral Agent, for the benefit of Secured Parties, and granted under any of the Loan Documents, (ii) provided that no Domestic Subsidiary that is a CFC Holdco shall be required to become a Guarantor hereunder or grant Liens in favor or otherwise pledge any of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, its assets as Collateral hereunder or under any other Loan Document and (iii) within sixty (60) days after such Person becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent may reasonably agree), the Borrower shall deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if searches and requested by the Administrative Agent, legal opinionsReal Estate Documents) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesMaterial Real Property. In addition, within five thirty (530) Business Days days after the date any Person becomes a Domestic Subsidiary of a Loan Partyor an Excluded Subsidiary ceases to be an Excluded Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement such documentation as reasonably required by Collateral Agent in form and substance reasonably satisfactory to the Administrative Collateral Agent, provided that the pledge of the Capital Stock of a Domestic Subsidiary that is a CFC Holdco shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Domestic Subsidiary, and (ii) if to the Capital Stock of such Subsidiary is extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Collateral Agent, for the benefit of the holders of the Obligations, together with appropriate powers executed in blank. Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any Material Real Property of a Person that becomes a Domestic Subsidiary after the Closing Date whether pursuant to formation, acquisition or otherwise, until (1) the date that occurs 45 days after the Collateral Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice, and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Material Real Property is located, evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents” and (2) the Collateral Agent shall have received written confirmation from the Lenders the that flood insurance due diligence and flood insurance compliance have been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed); provided that the Collateral Agent may enter into any such Mortgage prior to the notice period specified above upon receipt of the written confirmation described in clause (2) above and provided further that the Borrower’s obligations under Section 5.12(a) to grant a Mortgage of any Material Real Property within the 60-day time period described therein shall be extended for so long as is required to ensure compliance with the requirements of clause (2) above.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary or a Foreign Subsidiary ceases to be an Excluded Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Collateral Agent thereof, and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within sixty (60) days after such Person becomes a Foreign Subsidiary or, if the Collateral Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Collateral Agent shall permit, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (provided that, the pledge of the voting Capital Stock of any such Foreign Subsidiary that is a CFC shall be limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary) to the Collateral Agent, for the benefit of the holders of the Obligations, as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Collateral Agent, (ii) to the extent certificated, deliver the original certificates evidencing such pledged Capital Stock to the Collateral Agent, together with appropriate powers executed in blankblank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Collateral Agent may reasonably request.
(bc) No Foreign Subsidiary that is a CFC shall be required to become a Guarantor or grant any Lien or otherwise pledge any of its assets as Collateral pursuant to Section 5.12(a) or under any other Loan Document.
(d) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Collateral Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Collateral Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired Upon the creation or formed subsidiary acquisition of Borrower or any Subsidiary possessing assets in excess of One Thousand Dollars ($1,000) of any Loan Party permitted by this Agreement and, with respect to KNOLOGY of Georgia, Inc., upon the obtaining (but without imposing any obligation to seek such Governmental Approval) of any Governmental Approval permitting KNOLOGY of Georgia, Inc. to incur Debt and/or grant Liens on its assets (including, without limitation, a Subsidiary shall change in Applicable Law such that Governmental Approval is no longer required), cause to be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent executed and delivered to the Closing Date, any Person becomes Administrative Agent (i) a Subsidiary of a Loan Party, whether pursuant joinder agreement hereto in form and substance reasonably satisfactory to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent and the Required Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary and (y) within five (5) Business Days after in order that such Person becomes a Subsidiary of a Loan PartyBorrower hereunder, the Borrower shall cause such Subsidiary (iii) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Collateral Agreement in form and substance reasonably satisfactory to the Administrative AgentAgent and Required Lenders in order that such Person becomes a Borrower hereunder, (iii) one or more duly executed Mortgages and/or Collateral Assignments, as applicable, with respect to any real property owned or leased by such Subsidiary and authorizing such consents of third parties as are required to grant a security interest in such real property (except as cannot be obtained pursuant to the proviso set forth in Section 5.2(d)(i)), (iv) updated version of each Schedule referred to in Section 6.1(w) to reflect all changes to such Schedules resulting from such creation or acquisition of such Subsidiary and delivering, at the request of the Administrative Agent, (v) such UCC financing statements or similar instruments required other documents reasonably requested by the Administrative Agent to perfect and Required Lenders consistent with the Liens in favor terms of this Agreement which provide that such Subsidiary shall become bound by all of the Administrative Agent terms, covenants and granted under any of agreements contained in the Loan Documents, (ii) to grant Liens in favor of Documents and that the Administrative Agent in the proved Oil and Gas Properties assets of such Subsidiary by executing shall become Collateral for the Obligations. Upon satisfaction of the conditions set forth in this Section 8.12(a), each Subsidiary shall become a Borrower hereunder and delivering under the other Loan Documents to the Administrative Agent such Mortgages, to the same extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party party hereto and thereto on the Closing Date Date. Notwithstanding the foregoing, nothing in this Section 8.12 shall be deemed to prohibit any Lien or that such Subsidiary would be required to deliver other encumberance permitted pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank10.3.
(b) The Borrower agrees thatUpon the acquisition by any Loan Party or Subsidiary thereof, following the due execution and delivery of the Collateral Documents required any real property (whether owned in fee or leased) not listed on Schedule 6.1(r), provide to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a valid, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) (to the extent that such Lien can be perfected by execution, delivery copies of the Collateral Documents and/or recording of the UCC financing statements)purchase or lease documents, free as applicable, with respect thereto; and clear of all Liens other than Liens expressly permitted if requested by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event thatAgent or Required Lenders, subsequent promptly execute and deliver to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as a Mortgage, Collateral Assignment, landlord agreement, and all documents and other items reasonably requested by the Administrative Agent may permit with respect to any such newly acquired real property (except as cannot be obtained pursuant to the proviso set forth in its sole discretionSection 5.2(d)(i)), in each case in form and substance reasonably satisfactory to the Administrative Agent and Required Lenders. Notwithstanding the foregoing, nothing in this Section 8.12 shall be deemed to prohibit any Lien or other encumberance permitted pursuant to Section 10.3.
(c) Use best efforts to obtain consents of the applicable Governmental Authority or third party to the security interest of the Administrative Agent, on behalf of itself and the Lenders, in the CATV Franchises, PUC Authorizations or Material Contracts identified on Schedule 5.2(d) (excluding any such CATV Franchise, PUC Authorization or Material Contract for which a consent has previously been delivered or for which such requirement has been waived), and, where required, in any CATV Franchise or PUC Authorization acquired by any Loan Party subsequent to the date hereof and any Material Contract executed subsequent to the date hereof which replaces, supersedes or is entered into for substantially the same business purpose (as reasonably determined by the Administrative Agent in consultation with the Borrowers) as any Material Contract set forth on Schedule 5.2(d). For purposes of this Section 8.12(c) the term "best efforts" shall mean, as applicable: (i) the filing of an application or submission of a written request (in each case with a copy delivered to the Administrative Agent) to the appropriate Governmental Authority or third party for such consent within forty five (45) days after the closing date or acquisition date, as applicable, (ii) compliance with all applicable procedures with regard to obtaining any such consents, (iii) good faith negotiations, (iv) payment of fees and charges necessary to obtain such consents in such amount as are paid for such purposes in the ordinary course of business and (v) with respect to any formal denial of any such request by any Governmental Authority, the exhaustion of reasonable appeals of such formal denial. Notwithstanding the foregoing, the Loan Parties and their Subsidiaries shall have no obligation to seek such consents in those situations where Applicable Law (other than the local municipal ordinances creating or providing for any CATV Franchise) expressly prohibits or does not recognize a security interest in a CATV Franchise or a PUC Authorization, unless and until such Applicable Law changes so as to permit or recognize such security interest.
(d) Notwithstanding anything herein contained in any one or more of the Loan Documents to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is agreed that the Loan Parties shall not be deemed to have granted a “restricted subsidiary” for purposes security interest in any Communications License, CATV Franchise, PUC Authorization or agreement with respect to which the consent or approval of any indenturethird party is necessary for the creation of such a security interest until such time, credit if ever, as the consents or approvals applicable with respect to such Communications License, CATV Franchise, PUC Authorization or agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiaryhave been obtained.
Appears in 1 contract
Samples: Credit Agreement (Knology Inc)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Representative shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five ten (510) Business Days days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Representative shall cause such Domestic Subsidiary (i) to become a new Borrower or Guarantor as requested by the Administrative Agent and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering an Intellectual Property Security Agreement, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all fee ownership interests in Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, including certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five ten (510) Business Days days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Representative shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Representative shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within thirty (30) days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrowers are working in good faith, such longer period as the Administrative Agent shall permit not to exceed thirty (30) additional days, the Borrower Representative shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower Borrowers agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (to the extent that such Lien can be perfected by execution, delivery b) of the Collateral Documents and/or recording of the UCC financing statements), this Section free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Borrowers or the applicable Loan Party, Party and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (HireQuest, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with If, after the terms of Section 5.12(c). In the event that, subsequent to the Closing Restatement Effective Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Agent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Agent shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all the same types of its personal property collateral as granted by the other Loan Parties by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, Documents and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankRestatement Effective Date.
(b) [Reserved].
(c) The Parent and each Borrower agrees agree that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first first-priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Borrowers or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired Within 30 days (or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower such longer period as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall notify the Administrative Agent shall permit in its sole discretion) after the Borrower delivers (or is required to have delivered) the financial statements required by Section 5.1(b) and the Lenders not less than ten (10Compliance Certificate required by Section 5.1(c) Business Days prior with respect to each of the formation or acquisition first and third Fiscal Quarter of such Subsidiary and (y) within five (5) Business Days after such Person becomes a Subsidiary of a Loan Partyeach Fiscal Year, the Borrower shall will (i) cause such each Domestic US-DOCS\151470090.12 Subsidiary that is a Material Subsidiary (iexcluding any Excluded Subsidiary, any Specified Subsidiary and any Subsidiary that is already a Guarantor) (a “Joining Guarantor”) (A) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property subject to the Guaranty and Security Agreement by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as and to the extent applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iiiB) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports searches and, if requested by the Administrative Agent, legal opinions, provided, that legal opinions shall only be required for a Joining Guarantor having a fair market value in excess of $25,000,000) and to take all such other actions as such Subsidiary Joining Guarantor would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary Joining Guarantor had been a Loan Party on the Closing Date or that such Subsidiary would be required Amendment and Restatement Effective Date, (C) [reserved], and (D) to deliver pursuant to Section 5.13 Collateral Access Agreements with respect to leased Real Estate (to the extent the landlord of any proved Oil and Gas Properties. In additionsuch leased Real Estate is a PropCo Landlord, within five an Ensign Landlord or a landlord under a Material Master Lease), in each case, of the type required under Section 5.13, (5ii) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shallpledge, or shall cause the applicable Loan Party to (i) pledge pledge, all of the Capital Stock of such Subsidiary Joining Guarantor to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (iiiii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) Within 30 days (or such longer period as the Administrative Agent shall permit in its sole discretion) after the Borrower delivers (or is required to have delivered) the financial statements required by Section 5.1(b) and the Compliance Certificate required by Section 5.1(c) with respect to each of the first and third Fiscal Quarter of each Fiscal Year, the Borrower shall (i) cause the applicable Loan Parties to pledge all of the Capital Stock of each Foreign Subsidiary and each Pass-Through Foreign Holdco that is a Material Subsidiary (excluding any Excluded Subsidiaries) to the extent such Capital Stock is owned directly by a Loan Party to the Administrative Agent as security for the Obligations pursuant to the Guaranty and Security Agreement; provided that, in the case of any such Foreign Subsidiary that is a CFC and any such Pass-Through Foreign Holdco, such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (ii) deliver the original certificates (if any and to the extent not prohibited under applicable law) evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches but not legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) or (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section US-DOCS\151470090.12 shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
Appears in 1 contract
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary all interests in fee-owned Real Estate by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days after such Person becomes a Foreign Subsidiary or, if the Administrative Agent determines in its sole discretion that the Borrower is working in good faith, such longer period as the Administrative Agent shall permit not to exceed 60 additional days, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, (ii) deliver the original certificates, if any, evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) The Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event thatIf, subsequent to after the Closing Date, any Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Agent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Agent shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all the same types of its personal property collateral as granted by the other Loan Parties by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, Documents and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas Properties. In addition, within five (5) Business Days after the date any Person becomes a Subsidiary of a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blankDate.
(b) [Reserved.]
(c) The Parent and each Borrower agrees agree that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first first-priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2Permitted Liens. All actions to be taken pursuant to this Section shall be at the expense of the Borrower Borrowers or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Domestic Subsidiary of Parent that is a Loan PartyMaterial Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower Parent shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after such Person becomes a Subsidiary of a Loan PartyDomestic Subsidiary, the Borrower Parent shall cause such Domestic Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments reasonably required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, and (ii) to grant Liens in favor of the Administrative Agent in the proved Oil and Gas Properties of such Subsidiary by executing and delivering to the Administrative Agent such Mortgages, to the extent necessary to maintain compliance with Section 5.15, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesDate. In addition, within five 30 days (5or such longer period as the Administrative Agent shall permit in writing in its sole discretion) Business Days after the date any Person becomes a Domestic Subsidiary of a Loan PartyParent, Parent and the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Domestic Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) The In the event that, subsequent to the Closing Date, any Person becomes a Foreign Subsidiary, whether pursuant to formation, acquisition or otherwise, (x) Parent shall promptly notify the Administrative Agent and the Lenders thereof and (y) to the extent such Foreign Subsidiary is owned directly by any Loan Party, within 60 days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion) after such Person becomes a Foreign Subsidiary, Parent and the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Foreign Subsidiary (or, if the pledge of all of the voting Capital Stock of such Foreign Subsidiary would result in materially adverse tax consequences, then such pledge shall be limited to 66% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) to the Administrative Agent as security for the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches and legal opinions) and to take all such other actions as the Administrative Agent may reasonably request.
(c) Each of Parent and the Borrower agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan PartyParties, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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Samples: Credit Agreement (LendingTree, Inc.)
Additional Subsidiaries and Collateral. (a) Any newly acquired or formed subsidiary of Borrower or a Subsidiary shall be deemed a Subsidiary unless designated by Borrower as an Unrestricted Subsidiary in accordance with the terms of Section 5.12(c). In the event that, subsequent to the Closing Date, any Person becomes a Subsidiary of a Loan PartySubsidiary, whether pursuant to formation, acquisition or otherwise, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders not less than ten (10) Business Days prior to the formation or acquisition of such Subsidiary thereof and (y) within five (5) Business Days 30 days after such Person becomes a Subsidiary (other than (a) any Insurance Subsidiary, (b) any Subsidiary of an Insurance Subsidiary, (c) any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License (or such later date as agreed to in writing by the Administrative Agent and the Required Lenders in their sole discretion) or (d) a Loan PartySubsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders), the Borrower shall cause such Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement Agreement, in substantially the form and substance reasonably satisfactory of Annex I attached to the Administrative AgentGuaranty and Security Agreement, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the reasonable request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan DocumentsDocuments (it being understood and agreed that, with respect to any Subsidiary that is not organized under the laws of the United States, any state thereof or the District of Columbia, this clause (i) shall include the granting of Liens and taking of all perfection actions under the local laws of such Subsidiary’s jurisdiction of formation as may be reasonably required by the Administrative Agent and the Required Lenders), (ii) to grant Liens in favor of the Administrative Agent in all interests in Real Estate (other than Excluded Property) to the proved Oil and Gas Properties of such Subsidiary extent required by Section 5.13, by executing and delivering to the Administrative Agent such Mortgages, to Real Estate Documents as the extent necessary to maintain compliance with Section 5.15, Administrative Agent and the Required Lenders shall reasonably require and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, title insurance policies, surveys, environmental reports and, if requested by the Administrative Agent, and legal opinions) and to take all such other actions as such Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Subsidiary had been a Loan Party on the Closing Date or that such Subsidiary would be required to deliver pursuant to Section 5.13 with respect to any proved Oil and Gas PropertiesReal Estate. In addition, within five (5) Business Days 30 days after the date any Person becomes a direct Subsidiary of a Loan PartyParty (or such later date as agreed to in writing by the Administrative Agent and the Required Lenders in their sole discretion), the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Subsidiary directly owned by a Loan Party (other than Excluded Property) to the Administrative Agent as security for the Obligations Obligations, by executing and delivering a supplement to the Guaranty and Security Agreement Agreement, substantially in the form of Xxxxx XXX attached to the Guaranty and substance satisfactory Security Agreement, to the Administrative Agent, Agent and (ii) if the Capital Stock of such Subsidiary is certificated, deliver the original certificates evidencing such pledged Capital Stock (other than Excluded Property) to the Administrative Agent, together with appropriate powers executed in blank; provided that (1) if such Person that becomes a Subsidiary is an Insurance Subsidiary, a Subsidiary of an Insurance Subsidiary or any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, this requirement to pledge all of the Capital Stock of such Person shall not apply only to the extent the pledge thereof is (or would be) deemed a change of control of such Person or is (or would be) otherwise prohibited by applicable law or regulations, (2) in the case of any Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License, it is understood and agreed that until such approval is obtained, such Subsidiary shall not transact business or hold any material assets and (3) to the extent and for so long as such Person that becomes a Subsidiary is a Subsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders, this requirement to pledge all of the Capital Stock of such Person shall not apply; provided, that, to the extent that such pledge of such Capital Stock (or the pledge of any portion of such Capital Stock) would no longer result in an adverse Tax liability (which is not de minimis), such pledge (or the pledge of any portion of such Capital Stock, as applicable) shall be promptly given. For the avoidance of doubt, (x) in no event shall any Insurance Company, Subsidiary of an Insurance Company, any other Subsidiary of the Borrower that has applied for an Insurance License and will become an Insurance Subsidiary or Subsidiary of an Insurance Subsidiary upon the approval of such Insurance License or any Subsidiary with respect to which a guarantee by it would result in an adverse tax consequence (which is not de minimis) (including, without limitation, as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Code) to Holdings or the Borrower or any of their respective Subsidiaries, as reasonably determined by the Borrower and the Required Lenders, be required to become a Subsidiary Loan Party, a Loan Party or a Guarantor hereunder; provided, however, for the avoidance of doubt and notwithstanding anything to the contrary herein, in the case of the Persons described in clauses (1) and (3) immediately above, each such Person shall be subject to the applicable covenants contained herein and (y) as of the Closing Date and thereafter, the Capital Stock of RRC shall be pledged and perfected under the laws of the Cayman Islands and the Capital Stock of each other Insurance Subsidiary shall be pledged and perfected under the applicable laws of the United States.
(b) The Borrower hereby agrees that, following the due execution and delivery of the any Collateral Documents required to be executed and delivered by this Section, when UCC financing statements in appropriate form are filed in the appropriate governmental offices, the Administrative Agent shall have a validvalid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsection (a) of this Section (to the extent that such Lien can be perfected by the execution, delivery and/or recording of the Collateral Documents and/or recording of the or UCC financing statements, or possession of such Collateral), free and clear of all Liens (other than Liens expressly permitted by Section 7.2). All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the Administrative Agent.
(c) In the event that, subsequent to the Closing Date, any Person becomes a subsidiary of a Loan Party, whether pursuant to formation, acquisition or otherwise, and the Borrower elects for such Person to become an Unrestricted Subsidiary under this Agreement, the Borrower shall notify the Administrative Agent and the Lenders of such election not less than ten (10) Business Days prior to the formation or acquisition of such Unrestricted Subsidiary (or such shorter period of time as the Administrative Agent may permit in its sole discretion). Notwithstanding anything herein to the contrary, (i) at no time shall any subsidiary be an Unrestricted Subsidiary if it is a “restricted subsidiary” for purposes of any indenture, credit agreement or similar agreement that contains the concept of “restricted” and “unrestricted” subsidiaries or otherwise provides a guarantee of the obligations thereunder and (ii) the Borrower shall not designate any Subsidiary as an Unrestricted Subsidiary.
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