Covenant to Give Security. Upon (x) the formation or acquisition of any new direct or indirect Subsidiary by the Borrower or any Intermediate Holdco by the MLP or another Intermediate Holdco that is otherwise permitted hereby (including in connection with a Permitted MLP Contribution) or (y) the permitted acquisition of any Property (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000) by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted Liens) security interest in favor of the Collateral Agent for the benefit of the Secured Parties, then in each case at the Borrower’s expense: (i) in connection with the formation or acquisition of such Subsidiary or such Intermediate Holdco, within 15 days after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents; (ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent; (iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, securing payment of all of the Obligations and constituting Liens on all such Properties, and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; (iv) within 30 Business Days of such formation or acquisition, take, and cause each Loan Party and each newly acquired or newly formed Subsidiary or Intermediate Holdco, as applicable, to take, whatever action (including the recording of mortgages, the filing of UCC financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the Properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements delivered pursuant to this Section 8.01(o), enforceable against the Loan Parties and all third parties in accordance with their terms; (v) within 30 Business Days after such formation or acquisition, deliver to the Collateral Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of a favorable opinion (containing customary exceptions and limitations), addressed to the Collateral Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i), (iii) and (iv) above, (B) such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms, as to the matters contained in clause (iv) above,
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Enviva Partners, LP), Credit and Guaranty Agreement (Enviva Partners, LP)
Covenant to Give Security. (a) Upon (x) the formation or acquisition of any new Company Group Party or Project Company (unless, in the case of a Company Group Party or Project Company that is not wholly owned by a Loan Party or Affiliate thereof, such Company Group Party’s or Project Company’s Organization Documents prohibit Liens on Equity Interests of such Company Group Party or such Project Company pursuant to the Security Agreement, or in the case of any Project Company, such Lien is prohibited due to the terms of any Project-Level Indebtedness or any Permitted Tax Equity Financing binding upon such Person or another Project Company that is the direct or indirect Subsidiary by the Borrower parent of such Person or any Intermediate Holdco by the MLP expected to become binding upon such Person or another Intermediate Holdco Project Company that is otherwise permitted hereby the direct or indirect parent of such Person within one hundred eighty (including in connection with a Permitted MLP Contribution180) days (or (y) such longer period not to exceed 270 days as is reasonably acceptable to the permitted Administrative Agent), following its formation or acquisition of any Property (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000) by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted LiensParty) security interest in favor of the Collateral Agent for the benefit of the Secured Partiesowned directly by any Loan Party, then in each case the Borrower shall, at the Borrower’s expense, with respect to the Equity Interests in each such Company Group Party or Project Company:
(i) in connection with the formation or acquisition of such Subsidiary within 15 Business Days (or such Intermediate Holdco, within 15 days longer period as may be agreed to by the Administrative Agent in its reasonable discretion) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent;
(iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and other security agreements and pledge agreements, as reasonably specified by, by and in form and substance reasonably satisfactory to the Administrative Agent Agent, together with all Pledged Equity issued by such Company Group Party or Project Company and owned by a Loan Party and other instruments of the Collateral Agenttype specified in clause (a)(iv) of Article IV, securing payment of all of the Obligations of such Loan Party and constituting Liens on all such Propertiesproperties (provided that in no event shall such security interests or Liens apply to, in the case of any Foreign Subsidiary, more than 65% of the voting equity interests and 100% of non-voting equity interests in such Foreign Subsidiary; provided further, that in no event shall any Foreign Subsidiary or any direct or indirect Subsidiary of a Foreign Subsidiary be required to pledge or grant a security interest in any of its assets pursuant to this Section 6.12(a)(i));
(2ii) deliver, upon the request of within 15 Business Days (or such longer period as may be agreed to by the Administrative Agent in its sole reasonable discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly ) after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent;
(iv) within 30 Business Days of such formation or acquisition, take, and cause each the Loan Party and each newly acquired Parties or newly formed Subsidiary or Intermediate Holdco, as applicable, their Subsidiaries to take, take whatever action (including the recording of mortgages, the filing of UCC Uniform Commercial Code financing statements, statements and the giving of notices and the endorsement of notices on title documentsnotices) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Administrative Agent (or in any representative of the Collateral Administrative Agent designated by it) valid and subsisting first priority Liens (other than with respect to Permitted Prior Liens) on the Properties properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 8.01(o)6.12, enforceable against the Loan Parties and all third parties in accordance with their terms;; and
(viii) within 30 15 Business Days after (or such formation or acquisition, deliver longer period as may be agreed to the Collateral Agent, upon the request of by the Administrative Agent in its reasonable discretion) after such formation or acquisition, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent a signed copy of a favorable opinion (containing customary exceptions and limitations)opinion, addressed to the Collateral Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i) and (ii) above, and as to such other matters as the Administrative Agent may reasonably request and being substantially consistent with the opinions delivered pursuant to clause (a)(vii) of Article IV on the Closing Date.
(b) Subject to any limitations set forth in the Security Agreement with respect to particular types of assets or property, in the event that any Loan Party acquires any assets or property not referred to in Section 6.12(a) or any fee interest in any real property (with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $20,000,000 and (ii) 0.50% of Total Assets in the case of such real property), or any Person owns any such assets or property at the time it becomes a Loan Party, and such assets, property or interest in real property have not otherwise been made subject to the Lien of the Collateral Documents in favor of the Administrative Agent, for the benefit of Secured Parties, then such Loan Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates, including those which are similar to those described in clause (a)(iv) of Article IV, with respect to each such asset, property or interest in real property (other than Excluded Assets (as defined in the Security Agreement)), that the Administrative Agent shall reasonably request to create in favor of the Administrative Agent, for the benefit of Secured Parties, a valid and perfected (subject to Section 4.7(b) of the Security Agreement in the case of IP Rights) first priority (other than with respect to Permitted Prior Liens) security interest in such assets, property or interest in real property. The Administrative Agent shall receive from the applicable Loan Party within 90 days following the date that such Loan Party acquires any fee interest in any real property with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $20,000,000 and (ii) 0.50% of Total Assets (“Mortgaged Property”) (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion or as may be required to comply with the requirements of the last paragraph of this Section 6.12(b)) or, in the case of any real property owned by a Person at the time it becomes a Loan Party, within 90 days following the date that such Person becomes a Loan Party (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion or as may be required to comply with the requirements of the last paragraph of this Section 6.12(b)), the following documents and instruments:
(i) a mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated, in favor of the Administrative Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent, which mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Liens permitted by Section 7.01 applicable to such Mortgaged Property;
(ii) fully paid American Land Title Association Lxxxxx’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to and reasonably required by the Administrative Agent, insuring the mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable and are available in the relevant jurisdiction;
(iii) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to the Administrative Agent, including ExpressMaps prepared by First American Commercial Due Diligence Services, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the date on which a mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), either (i) certified by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent or (ii) as to ExpressMaps, in form and substance reasonably acceptable to the issuer of the Mortgage Policies to delete the standard survey exceptions and to issue endorsements to the same extent as such exceptions could have been deleted and such endorsements issued had an ALTA/ACSM Survey been provided rather than an ExpressMap;
(iv) all such other items as shall be reasonably necessary in the opinion of counsel to the Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, subject only to Liens permitted by Section 7.01;
(v) opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent any Mortgaged Property is subject to the provisions of the Flood Insurance Laws, (i) (x) concurrently with the delivery of the mortgage in favor of the Administrative Agent in connection therewith and (y) at any other time if necessary for compliance with applicable Flood Insurance Laws, a standard flood hazard determination form for such Mortgaged Property and (ii) if improvements located on such Mortgaged Property are located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance in such amount as the Administrative Agent may from time to time reasonably require, and otherwise to ensure compliance with Flood Insurance Laws. Notwithstanding anything contained in this Agreement to the contrary, no mortgage on any Mortgaged Property may be submitted for recording unless and until (x) the Administrative Agent and all Lenders have received at least thirty (30) days’ prior written notice thereof, together with a draft of such proposed mortgage and any other documents required pursuant to this Section 6.12(b) (each of which may be provided via email or via posting on any datasite to which the Lenders have access), and (y) the Administrative Agent has notified the Borrower in writing (which notice may be provided via email) that Administrative Agent has completed its flood insurance due diligence and compliance procedures with respect thereto.
(c) If any Loan Party is prohibited from providing a Lien on the Equity Interests it owns in a Project Company pursuant to the requirements of Section 6.12(a) due to the terms of any Project-Level Indebtedness or Permitted Tax Equity Financing entered into by such Project Company or any other Project Company that is the direct or indirect parent of such Project Company after the Closing Date, and such prohibition was not implemented by the Borrower or any of its Affiliates primarily to prevent such Equity Interests from being Collateral (as determined from the standpoint of the Borrower (rather than any lenders of Project-Level Indebtedness)), then the Borrower shall provide written notice of the foregoing to the Administrative Agent and any such Lien on such Equity Interests under the Loan Documents shall automatically be discharged and released without any further action by any Person effective as of the time of entering into of such Project-Level Indebtedness Document or Permitted Tax Equity Financing Document or containing such prohibition. The Administrative Agent hxxxxx agrees to execute and deliver such documentation (including, without limitation, releases and UCC termination statements with respect to any such pledge) at the Borrower’s expense as the Borrower may reasonably request to evidence any such discharge and release provided for in this Section 6.12 and the Lenders hereby authorize the Administrative Agent to do so.
(d) In the event that any Subsidiary of any Loan Party which is a Project Company shall no longer constitute a Project Company or any Loan Party acquires any Subsidiary which is not a Project Company (unless, in the case of a Subsidiary that is not wholly owned by a Loan Party or Affiliate thereof, such Subsidiary’s Organization Documents prohibit the guarantee by such Subsidiary of the Obligations pursuant to the Guaranty or the granting of a security interest by such Subsidiary to secure the Obligations), and, in each case, such Subsidiary is not a Foreign Subsidiary, the Borrower shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under the Security Agreement within fifteen (15) Business Days of the date thereof (or up to twenty (20) Business Days of the date thereof if reasonably acceptable to the Administrative Agent) by executing and delivering to the Administrative Agent a Counterpart Agreement and a Joinder Agreement under, and as defined in, the Security Agreement and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates reasonably requested by the Administrative Agent, including those which are similar to those described in clauses (a)(iv), (iiiv), (vi) and (ivvii) aboveof Article IV, or joinders thereto, as applicable. With respect to each such Subsidiary, the Borrower shall promptly send to the Administrative Agent written notice setting forth with respect to such Subsidiary (Bi) the date on which such Subsidiary shall no longer constitute a Project Company or the date of acquisition of such Subsidiary, as applicable and (ii) all of the data required to be set forth in Schedule 5.13 with respect to all Subsidiaries of the Borrower. Notwithstanding anything to the contrary herein or in any other Loan Document, any requirement to give the Administrative Agent possession or control of any Collateral will be satisfied if (i) such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms, as possession or control is given to the matters contained Revolving Administrative Agent and (ii) the First Lien Pari Passu Intercreditor Agreement is then in clause (iv) above,effect.
Appears in 2 contracts
Samples: Senior Secured Bridge Credit Agreement (Clearway Energy LLC), Senior Secured Bridge Credit Agreement (Clearway Energy, Inc.)
Covenant to Give Security. (a) Upon (x) the formation or acquisition of any new direct Company Group Party or indirect Subsidiary by Project Company (unless, in the Borrower case of a Company Group Party or any Intermediate Holdco by the MLP or another Intermediate Holdco Project Company that is otherwise permitted hereby (including not wholly owned by a Loan Party or Affiliate thereof, such Company Group Party’s or Project Company’s Organization Documents prohibit Liens on Equity Interests of such Company Group Party or such Project Company pursuant to the Security Agreement, or in connection with a Permitted MLP Contribution) or (y) the permitted acquisition case of any Property Project Company, such Lien is prohibited due to the terms of any Project-Level Indebtedness binding upon such Person or expected to become binding upon such Person within one hundred eighty (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000180) days (or such longer period not to exceed 270 days as is reasonably acceptable to the Administrative Agent), following its formation or acquisition by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted LiensParty) security interest in favor of the Collateral Agent for the benefit of the Secured Partiesowned directly by any Loan Party, then in each case the Borrower shall, at the Borrower’s expense, with respect to the Equity Interests in each such Company Group Party or Project Company:
(i) in connection with the formation or acquisition of such Subsidiary within 15 Business Days (or such Intermediate Holdco, within 15 days longer period as may be agreed to by the Administrative Agent in its reasonable discretion) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent;
(iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and other security agreements and pledge agreements, as reasonably specified by, by and in form and substance reasonably satisfactory to the Administrative Agent Agent, together with all Pledged Equity issued by such Company Group Party or Project Company and owned by a Loan Party and other instruments of the Collateral Agenttype specified in Section 4.01(a)(iii), securing payment of all of the Obligations of such Loan Party and constituting Liens on all such Propertiesproperties (provided that in no event shall such security interests or Liens apply to, in the case of any Foreign Subsidiary, more than 65% of the voting equity interests and 100% of non-voting equity interests in such Foreign Subsidiary; provided further, that in no event shall any Foreign Subsidiary or any direct or indirect Subsidiary of a Foreign Subsidiary be required to pledge or grant a security interest in any of its assets pursuant to this Section 6.12(a)(i));
(2ii) deliver, upon the request of within 15 Business Days (or such longer period as may be agreed to by the Administrative Agent in its sole reasonable discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly ) after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent;
(iv) within 30 Business Days of such formation or acquisition, take, and cause each the Loan Party and each newly acquired Parties or newly formed Subsidiary or Intermediate Holdco, as applicable, their Subsidiaries to take, take whatever action (including the recording of mortgages, the filing of UCC Uniform Commercial Code financing statements, statements and the giving of notices and the endorsement of notices on title documentsnotices) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Administrative Agent (or in any representative of the Collateral Administrative Agent designated by it) valid and subsisting first priority Liens (other than with respect to Permitted Prior Liens) on the Properties properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 8.01(o)6.12, enforceable against the Loan Parties and all third parties in accordance with their terms;; and
(viii) within 30 15 Business Days after (or such formation or acquisition, deliver longer period as may be agreed to the Collateral Agent, upon the request of by the Administrative Agent in its reasonable discretion) after such formation or acquisition, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent a signed copy of a favorable opinion (containing customary exceptions and limitations)opinion, addressed to the Collateral Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i) and (ii) above, and as to such other matters as the Administrative Agent may reasonably request and being substantially consistent with the opinions delivered pursuant to Section 4.01(a)(v) on the Closing Date.
(b) Subject to any limitations set forth in the Security Agreement with respect to particular types of assets or property, in the event that any Loan Party acquires any assets or property not referred to in Section 6.12(a) or any fee interest in any real property (with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $10,000,000 and (ii) 0.50% of Total Assets in the case of such real property), or any Person owns any such assets or property at the time it becomes a Loan Party, and such assets, property or interest in real property have not otherwise been made subject to the Lien of the Collateral Documents in favor of the Administrative Agent, for the benefit of Secured Parties, then such Loan Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Section 4.01(a)(iii), with respect to each such asset, property or interest in real property (other than Excluded Assets (as defined in the Security Agreement)), that the Administrative Agent shall reasonably request to create in favor of the Administrative Agent, for the benefit of Secured Parties, a valid and perfected (subject to Section 4.7(b) of the Security Agreement in the case of IP Rights) first priority (other than with respect to Permitted Prior Liens) security interest in such assets, property or interest in real property. The Administrative Agent shall receive from the applicable Loan Party within 90 days following the date that such Loan Party acquires any fee interest in any real property with a fair market value, inclusive of fixtures located thereon, in excess of the greater of
(i) $10,000,000 and (ii) 0.50% of Total Assets (“Mortgaged Property”) (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion) or, in the case of any real property owned by a Person at the time it becomes a Loan Party, within 90 days following the date that such Person becomes a Loan Party (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion), the following documents and instruments:
(i) a mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated, in favor of the Administrative Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent, which mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Liens permitted by Section 7.01 applicable to such Mortgaged Property;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to and reasonably required by the Administrative Agent, insuring the mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable and are available in the relevant jurisdiction;
(iii) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to the Administrative Agent, including ExpressMaps prepared by First American Commercial Due Diligence Services, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the date on which a mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), either (i) certified by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off- site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent or (ii) as to ExpressMaps, in form and substance reasonably acceptable to the issuer of the Mortgage Policies to delete the standard survey exceptions and to issue endorsements to the same extent as such exceptions could have been deleted and such endorsements issued had an ALTA/ACSM Survey been provided rather than an ExpressMap;
(iv) all such other items as shall be reasonably necessary in the opinion of counsel to the Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, subject only to Liens permitted by Section 7.01;
(v) opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent any Mortgaged Property is subject to the provisions of the Flood Insurance Laws, (i) (x) concurrently with the delivery of the mortgage in favor of the Administrative Agent in connection therewith and (y) at any other time if necessary for compliance with applicable Flood Insurance Laws, a standard flood hazard determination form for such Mortgaged Property and (ii) if improvements located on such Mortgaged Property are located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance in such amount as the Administrative Agent may from time to time reasonably require, and otherwise to ensure compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time (the “Flood Insurance Laws”).
(c) If any Loan Party is prohibited from providing a Lien on the Equity Interests it owns in a Project Company pursuant to the requirements of Section 6.12(a) due to the terms of any Project-Level Indebtedness entered into by such Project Company after the Closing Date, and such prohibition was not implemented by the Borrower or any of its Affiliates primarily to prevent such Equity Interests from being Collateral (as determined from the standpoint of the Borrower (rather than any lenders of Project-Level Indebtedness)), then the Borrower shall provide written notice of the foregoing to the Administrative Agent and any such Lien on such Equity Interests under the Loan Documents shall automatically be discharged and released without any further action by any Person effective as of the time of entering into of such Project-Level Indebtedness Document containing such prohibition. The Administrative Agent hereby agrees to execute and deliver such documentation (including, without limitation, releases and UCC termination statements with respect to any such pledge) at the Borrower’s expense as the Borrower may reasonably request to evidence any such discharge and release provided for in this Section 6.12 and the Lenders hereby authorize the Administrative Agent to do so.
(d) In the event that any Subsidiary of any Loan Party which is a Project Company shall no longer constitute a Project Company or any Loan Party acquires any Subsidiary which is not a Project Company (unless, in the case of a Subsidiary that is not wholly owned by a Loan Party or Affiliate thereof, such Subsidiary’s Organization Documents prohibit the guarantee by such Subsidiary of the Obligations pursuant to the Guaranty or the granting of a security interest by such Subsidiary to secure the Obligations), and, in each case, such Subsidiary is not a Foreign Subsidiary, the Borrower shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under the Security Agreement within fifteen (15) Business Days of the date thereof (or up to twenty (20) Business Days of the date thereof if reasonably acceptable to the Administrative Agent) by executing and delivering to the Administrative Agent a Counterpart Agreement and a Joinder Agreement under the Security Agreement and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates reasonably requested by the Administrative Agent, including those which are similar to those described in Sections 4.01(a)(iii), (iiiiv) and (ivv). With respect to each such Subsidiary, the Borrower shall promptly send to the Administrative Agent written notice setting forth with respect to such Subsidiary
(i) above, (B) the date on which such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations Subsidiary shall no longer constitute a Project Company or the date of each Loan Party party thereto enforceable in accordance with their termsacquisition of such Subsidiary, as applicable and
(ii) all of the data required to be set forth in Schedule 5.13 with respect to all Subsidiaries of the matters contained in clause (iv) above,Borrower.
Appears in 1 contract
Samples: Credit Agreement
Covenant to Give Security. (a) Upon (x) the formation or acquisition of any new Company Group Party or Project Company (unless, in the case of a Company Group Party or Project Company that is not wholly owned by a Loan Party or Affiliate thereof, such Company Group Party’s or Project Company’s Organization Documents prohibit Liens on Equity Interests of such Company Group Party or such Project Company pursuant to the Security Agreement, or in the case of any Project Company, such Lien is prohibited due to the terms of any Project-Level Indebtedness or any Permitted Tax Equity Financing binding upon such Person or another Project Company that is the direct or indirect Subsidiary by the Borrower parent of such Person or any Intermediate Holdco by the MLP expected to become binding upon such Person or another Intermediate Holdco Project Company that is otherwise permitted hereby the direct or indirect parent of such Person within one hundred eighty (including in connection with a Permitted MLP Contribution180) days (or (y) such longer period not to exceed 270 days as is reasonably acceptable to the permitted Administrative Agent), following its formation or acquisition of any Property (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000) by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted LiensParty) security interest in favor of the Collateral Agent for the benefit of the Secured Partiesowned directly by any Loan Party, then in each case the Borrower shall, at the Borrower’s expense, with respect to the Equity Interests in each such Company Group Party or Project Company:
(i) in connection with the formation or acquisition of such Subsidiary within 15 Business Days (or such Intermediate Holdco, within 15 days longer period as may be agreed to by the Administrative Agent in its reasonable discretion) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent;
(iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and other security agreements and pledge agreements, as reasonably specified by, by and in form and substance reasonably satisfactory to the Administrative Agent Agent, together with all Pledged Equity issued by such Company Group Party or Project Company and owned by a Loan Party and other instruments of the Collateral Agenttype specified in Section 4.01(a)(iii), securing payment of all of the Obligations of such Loan Party and constituting Liens on all such Propertiesproperties (provided that in no event shall such security interests or Liens apply to, in the case of any Foreign Subsidiary, more than 65% of the voting equity interests and 100% of non-voting equity interests in such Foreign Subsidiary; provided further, that in no event shall any Foreign Subsidiary or any direct or indirect Subsidiary of a Foreign Subsidiary be required to pledge or grant a security interest in any of its assets pursuant to this Section 6.12(a)(i));
(2ii) deliver, upon the request of within 15 Business Days (or such longer period as may be agreed to by the Administrative Agent in its sole reasonable discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly ) after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent;
(iv) within 30 Business Days of such formation or acquisition, take, and cause each the Loan Party and each newly acquired Parties or newly formed Subsidiary or Intermediate Holdco, as applicable, their Subsidiaries to take, take whatever action (including the recording of mortgages, the filing of UCC Uniform Commercial Code financing statements, statements and the giving of notices and the endorsement of notices on title documentsnotices) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Administrative Agent (or in any representative of the Collateral Administrative Agent designated by it) valid and subsisting first priority Liens (other than with respect to Permitted Prior Liens) on the Properties properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 8.01(o)6.12, enforceable against the Loan Parties and all third parties in accordance with their terms;; and
(viii) within 30 15 Business Days after (or such formation or acquisition, deliver longer period as may be agreed to the Collateral Agent, upon the request of by the Administrative Agent in its reasonable discretion) after such formation or acquisition, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent a signed copy of a favorable opinion (containing customary exceptions and limitations)opinion, addressed to the Collateral Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i) and (ii) above, and as to such other matters as the Administrative Agent may reasonably request and being substantially consistent with the opinions delivered pursuant to Section 4.01(a)(v) on the Closing Date.
(b) Subject to any limitations set forth in the Security Agreement with respect to particular types of assets or property, in the event that any Loan Party acquires any assets or property not referred to in Section 6.12(a) or any fee interest in any real property (with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $10,000,00020,000,000 and (ii) 0.50% of Total Assets in the case of such real property), or any Person owns any such assets or property at the time it becomes a Loan Party, and such assets, property or interest in real property have not otherwise been made subject to the Lien of the Collateral Documents in favor of the Administrative Agent, for the benefit of Secured Parties, then such Loan Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Section 4.01(a)(iii), with respect to each such asset, property or interest in real property (other than Excluded Assets (as defined in the Security Agreement)), that the Administrative Agent shall reasonably request to create in favor of the Administrative Agent, for the benefit of Secured Parties, a valid and perfected (subject to Section 4.7(b) of the Security Agreement in the case of IP Rights) first priority (other than with respect to Permitted Prior Liens) security interest in such assets, property or interest in real property. The Administrative Agent shall receive from the applicable Loan Party within 90 days following the date that such Loan Party acquires any fee interest in any real property with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $10,000,00020,000,000 and (ii) 0.50% of Total Assets (“Mortgaged Property”) (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion) or, in the case of any real property owned by a Person at the time it becomes a Loan Party, within 90 days following the date that such Person becomes a Loan Party (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion), the following documents and instruments:
(i) a mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated, in favor of the Administrative Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent, which mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Liens permitted by Section 7.01 applicable to such Mortgaged Property;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to and reasonably required by the Administrative Agent, insuring the mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable and are available in the relevant jurisdiction;
(iii) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to the Administrative Agent, including ExpressMaps prepared by First American Commercial Due Diligence Services, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the date on which a mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), either (i) certified by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent or (ii) as to ExpressMaps, in form and substance reasonably acceptable to the issuer of the Mortgage Policies to delete the standard survey exceptions and to issue endorsements to the same extent as such exceptions could have been deleted and such endorsements issued had an ALTA/ACSM Survey been provided rather than an ExpressMap;
(iv) aboveall such other items as shall be reasonably necessary in the opinion of counsel to the Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, subject only to Liens permitted by Section 7.01;
(v) opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent any Mortgaged Property is subject to the provisions of the Flood Insurance Laws, (Bi) (x) concurrently with the delivery of the mortgage in favor of the Administrative Agent in connection therewith and (y) at any other time if necessary for compliance with applicable Flood Insurance Laws, a standard flood hazard determination form for such guarantiesMortgaged Property and (ii) if improvements located on such Mortgaged Property are located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), guaranty supplementsevidence of flood insurance in such amount as the Administrative Agent may from time to time reasonably require, mortgagesand otherwise to ensure compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations of each as it may be amended from time to time (the “Flood Insurance Laws”).
(c) If any Loan Party party thereto enforceable is prohibited from providing a Lien on the Equity Interests it owns in accordance with their terms, as a Project Company pursuant to the matters contained in clause requirements of Section 6.12(a) due to the terms of any Project-Level Indebtedness or Permitted Tax Equity Financing entered into by such Project Company or any other Project Company that is the direct or indirect parent of such Project Company after the Closing Date, and such prohibition was not implemented by the Borrower or any of its Affiliates primarily to prevent such Equity Interests from being Collateral (iv) above,as determined from the standpoint of the Borrower (rather than any lenders of Project-Level Indebtedness)), then the Borrower shall provide written notice of the foregoing to the Administrative Agent and any such Lien on such Equity Interests under the Loan Documents shall automatically be discharged and released without any further action by any Person effective as of the time of entering into of such Project-Level Indebtedness Document or
Appears in 1 contract
Samples: Credit Agreement (NRG Yield, Inc.)
Covenant to Give Security. (a) Upon (x) the formation or acquisition of any new direct Company Group Party or indirect Subsidiary by Project Company (unless, in the Borrower case of a Company Group Party or any Intermediate Holdco by the MLP or another Intermediate Holdco Project Company that is otherwise permitted hereby (including not wholly owned by a Loan Party or Affiliate thereof, such Company Group Party’s or Project Company’s Organization Documents prohibit Liens on Equity Interests of such Company Group Party or such Project Company pursuant to the Security Agreement, or in connection with a Permitted MLP Contribution) or (y) the permitted acquisition case of any Property Project Company, such Lien is prohibited due to the terms of any Project-Level Indebtedness binding upon such Person or expected to become binding upon such Person within one hundred eighty (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000180) days (or such longer period not to exceed 270 days as is reasonably acceptable to the Administrative Agent), following its formation or acquisition by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted LiensParty) security interest in favor of the Collateral Agent for the benefit of the Secured Partiesowned directly by any Loan Party, then in each case the Borrower shall, at the Borrower’s expense, with respect to the Equity Interests in each such Company Group Party or Project Company:
(i) in connection with the formation or acquisition of such Subsidiary within 15 Business Days (or such Intermediate Holdco, within 15 days longer period as may be agreed to by the Administrative Agent in its reasonable discretion) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent;
(iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and other security agreements and pledge agreements, as reasonably specified by, by and in form and substance reasonably satisfactory to the Administrative Agent Agent, together with all Pledged Equity issued by such Company Group Party or Project Company and owned by a Loan Party and other instruments of the Collateral Agenttype specified in Section 4.01(a)(iii), securing payment of all of the Obligations of such Loan Party and constituting Liens on all such Propertiesproperties (provided that in no event shall such security interests or Liens apply to, in the case of any Foreign Subsidiary, more than 65% of the voting equity interests and 100% of non-voting equity interests in such Foreign Subsidiary; provided further, that in no event shall any Foreign Subsidiary or any direct or indirect Subsidiary of a Foreign Subsidiary be required to pledge or grant a security interest in any of its assets pursuant to this Section 6.12(a)(i));
(2ii) deliver, upon the request of within 15 Business Days (or such longer period as may be agreed to by the Administrative Agent in its sole reasonable discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly ) after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent;
(iv) within 30 Business Days of such formation or acquisition, take, and cause each the Loan Party and each newly acquired Parties or newly formed Subsidiary or Intermediate Holdco, as applicable, their Subsidiaries to take, take whatever action (including the recording of mortgages, the filing of UCC Uniform Commercial Code financing statements, statements and the giving of notices and the endorsement of notices on title documentsnotices) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Administrative Agent (or in any representative of the Collateral Administrative Agent designated by it) valid and subsisting first priority Liens (other than with respect to Permitted Prior Liens) on the Properties properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 8.01(o)6.12, enforceable against the Loan Parties and all third parties in accordance with their terms;; and
(viii) within 30 15 Business Days after (or such formation or acquisition, deliver longer period as may be agreed to the Collateral Agent, upon the request of by the Administrative Agent in its reasonable discretion) after such formation or acquisition, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent a signed copy of a favorable opinion (containing customary exceptions and limitations)opinion, addressed to the Collateral Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i) and (ii) above, and as to such other matters as the Administrative Agent may reasonably request and being substantially consistent with the opinions delivered pursuant to Section 4.01(a)(v) on the Closing Date.
(b) Subject to any limitations set forth in the Security Agreement with respect to particular types of assets or property, in the event that any Loan Party acquires any assets or property not referred to in Section 6.12(a) or any fee interest in any real property (with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $10,000,000 and (ii) 0.50% of Total Assets in the case of such real property), or any Person owns any such assets or property at the time it becomes a Loan Party, and such assets, property or interest in real property have not otherwise been made subject to the Lien of the Collateral Documents in favor of the Administrative Agent, for the benefit of Secured Parties, then such Loan Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Section 4.01(a)(iii), with respect to each such asset, property or interest in real property (other than Excluded Assets (as defined in the Security Agreement)), that the Administrative Agent shall reasonably request to create in favor of the Administrative Agent, for the benefit of Secured Parties, a valid and perfected (subject to Section 4.7(b) of the Security Agreement in the case of IP Rights) first priority (other than with respect to Permitted Prior Liens) security interest in such assets, property or interest in real property. The Administrative Agent shall receive from the applicable Loan Party within 90 days following the date that such Loan Party acquires any fee interest in any real property with a fair market value, inclusive of fixtures located thereon, in excess of the greater of (i) $10,000,000 and (ii) 0.50% of Total Assets (“Mortgaged Property”) (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion) or, in the case of any real property owned by a Person at the time it becomes a Loan Party, within 90 days following the date that such Person becomes a Loan Party (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion), the following documents and instruments:
(i) a mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated, in favor of the Administrative Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent, which mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Liens permitted by Section 7.01 applicable to such Mortgaged Property;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to and reasonably required by the Administrative Agent, insuring the mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable and are available in the relevant jurisdiction;
(iii) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to the Administrative Agent, including ExpressMaps prepared by First American Commercial Due Diligence Services, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the date on which a mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), either (i) certified by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent or (ii) as to ExpressMaps, in form and substance reasonably acceptable to the issuer of the Mortgage Policies to delete the standard survey exceptions and to issue endorsements to the same extent as such exceptions could have been deleted and such endorsements issued had an ALTA/ACSM Survey been provided rather than an ExpressMap;
(iv) all such other items as shall be reasonably necessary in the opinion of counsel to the Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, subject only to Liens permitted by Section 7.01;
(v) opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent any Mortgaged Property is subject to the provisions of the Flood Insurance Laws, (i) (x) concurrently with the delivery of the mortgage in favor of the Administrative Agent in connection therewith and (y) at any other time if necessary for compliance with applicable Flood Insurance Laws, a standard flood hazard determination form for such Mortgaged Property and (ii) if improvements located on such Mortgaged Property are located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance in such amount as the Administrative Agent may from time to time reasonably require, and otherwise to ensure compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time (the “Flood Insurance Laws”).
(c) If any Loan Party is prohibited from providing a Lien on the Equity Interests it owns in a Project Company pursuant to the requirements of Section 6.12(a) due to the terms of any Project-Level Indebtedness entered into by such Project Company after the Closing Date, and such prohibition was not implemented by the Borrower or any of its Affiliates primarily to prevent such Equity Interests from being Collateral (as determined from the standpoint of the Borrower (rather than any lenders of Project-Level Indebtedness)), then the Borrower shall provide written notice of the foregoing to the Administrative Agent and any such Lien on such Equity Interests under the Loan Documents shall automatically be discharged and released without any further action by any Person effective as of the time of entering into of such Project-Level Indebtedness Document containing such prohibition. The Administrative Agent hereby agrees to execute and deliver such documentation (including, without limitation, releases and UCC termination statements with respect to any such pledge) at the Borrower’s expense as the Borrower may reasonably request to evidence any such discharge and release provided for in this Section 6.12 and the Lenders hereby authorize the Administrative Agent to do so.
(d) In the event that any Subsidiary of any Loan Party which is a Project Company shall no longer constitute a Project Company or any Loan Party acquires any Subsidiary which is not a Project Company (unless, in the case of a Subsidiary that is not wholly owned by a Loan Party or Affiliate thereof, such Subsidiary’s Organization Documents prohibit the guarantee by such Subsidiary of the Obligations pursuant to the Guaranty or the granting of a security interest by such Subsidiary to secure the Obligations), and, in each case, such Subsidiary is not a Foreign Subsidiary, the Borrower shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under the Security Agreement within fifteen (15) Business Days of the date thereof (or up to twenty (20) Business Days of the date thereof if reasonably acceptable to the Administrative Agent) by executing and delivering to the Administrative Agent a Counterpart Agreement and a Joinder Agreement under the Security Agreement and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates reasonably requested by the Administrative Agent, including those which are similar to those described in Sections 4.01(a)(iii), (iiiiv) and (ivv). With respect to each such Subsidiary, the Borrower shall promptly send to the Administrative Agent written notice setting forth with respect to such Subsidiary (i) above, (B) the date on which such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations Subsidiary shall no longer constitute a Project Company or the date of each Loan Party party thereto enforceable in accordance with their termsacquisition of such Subsidiary, as applicable and (ii) all of the data required to be set forth in Schedule 5.13 with respect to all Subsidiaries of the matters contained in clause (iv) above,Borrower.
Appears in 1 contract
Samples: Credit Agreement (NRG Yield, Inc.)
Covenant to Give Security. (a) Upon (x) the formation or acquisition of any new direct Company Group Party or indirect Subsidiary by Project Company (unless, in the Borrower case of a Company Group Party or any Intermediate Holdco by the MLP or another Intermediate Holdco Project Company that is otherwise permitted hereby (including not wholly owned by a Loan Party or Affiliate thereof, such Company Group Party’s or Project Company’s Organization Documents prohibit Liens on Equity Interests of such Company Group Party or such Project Company pursuant to the Security Agreement, or in connection with a Permitted MLP Contribution) or (y) the permitted acquisition case of any Property Project Company, such Lien is prohibited due to the terms of any Project-Level Indebtedness binding upon such Person or expected to become binding upon such Person within one hundred eighty (other than any Excluded Property and other than any real Property with an aggregate fair market value of less than $2,000,000180) days (or such longer period not to exceed 270 days as is reasonably acceptable to the Administrative Agent), following its formation or acquisition by any Loan Party and such Property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority (subject to Permitted LiensParty) security interest in favor of the Collateral Agent for the benefit of the Secured Partiesowned directly by any Loan Party, then in each case the Borrower shall, at the Borrower’s expense, with respect to the Equity Interests in each such Company Group Party or Project Company:
(i) in connection with the formation or acquisition of such Subsidiary within 15 Business Days (or such Intermediate Holdco, within 15 days longer period as may be agreed to by the Administrative Agent in its reasonable discretion) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent (but only up to the Borrower level) of such Subsidiary or such Intermediate Holdco, as applicable (if it has not already done so), to duly execute and deliver to the Administrative Agent and the Collateral Agent a Guaranty Supplement, in the form of Exhibit J (each a “Guaranty Supplement”) hereto, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 21 days after such formation or acquisition, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal Properties of such Subsidiary or such Intermediate Holdco, as applicable, or the real and personal Properties so acquired, in each case in detail necessary for the Collateral Agent to perfect a Lien on such Properties (other than Excluded Property) as reasonably determined by the Administrative Agent and the Collateral Agent;
(iii) within 30 Business Days after (A) such formation or acquisition of property by any Loan Party, (1) duly execute and deliver, and cause such Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent, mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and other security agreements and pledge agreements, as reasonably specified by, by and in form and substance reasonably satisfactory to the Administrative Agent Agent, together with all Pledged Equity issued by such Company Group Party or Project Company and owned by a Loan Party and other instruments of the Collateral Agenttype specified in Section 4.01(a)(iii), securing payment of all of the Obligations of such Loan Party and constituting Liens on all such Propertiesproperties (provided that in no event shall such security interests or Liens apply to, in the case of any Foreign Subsidiary or a Foreign Subsidiary Holding Company, more than 65% of the voting equity interests and 100% of non-voting equity interests in such Foreign Subsidiary or Foreign Subsidiary Holding Company; provided further, that in no event shall any Foreign Subsidiary or any direct or indirect Subsidiary of a Foreign Subsidiary be required to pledge or grant a security interest in any of its assets pursuant to this Section 6.12(a)(i));
(2ii) deliver, upon the request of within 15 Business Days (or such longer period as may be agreed to by the Administrative Agent in its sole reasonable discretion, to the Administrative Agent with respect to such real Property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that to the extent that any Loan Party shall have otherwise received any of the foregoing items with respect to such Property, such items shall, promptly ) after the receipt thereof, be delivered to the Administrative Agent, and (B) such formation or acquisition of such Subsidiary or such Intermediate Holdco, (1) duly execute and deliver and cause such Subsidiary or such Intermediate Holdco, as applicable, and each Loan Party acquiring Capital Stock in such Subsidiary or such Intermediate Holdco, as applicable, to duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreements, intellectual property security agreement supplements and other security agreements as reasonably specified by, and in form and substance reasonably satisfactory to, the Administrative Agent and the Collateral Agent, securing payment of all of the obligations of such Subsidiary or such Intermediate Holdco, as applicable, or Loan Party, respectively, under the Loan Documents and (2) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property, mortgagee title insurance policies, surveys and engineering, soils and other reports, Flood Certificates and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent;
(iv) within 30 Business Days of such formation or acquisition, take, and cause each the Loan Party and each newly acquired Parties or newly formed Subsidiary or Intermediate Holdco, as applicable, their Subsidiaries to take, take whatever action (including the recording of mortgages, the filing of UCC Uniform Commercial Code financing statements, statements and the giving of notices and the endorsement of notices on title documentsnotices) may be necessary or advisable in the reasonable opinion of the Administrative Agent and the Collateral Agent to vest in the Collateral Administrative Agent (or in any representative of the Collateral Administrative Agent designated by it) valid and subsisting first priority Liens (other than with respect to Permitted Prior Liens) on the Properties properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 8.01(o)6.12, enforceable against the Loan Parties and all third parties in accordance with their terms;, and
(viii) within 30 15 Business Days after (or such formation or acquisition, deliver longer period as may be agreed to the Collateral Agent, upon the request of by the Administrative Agent in its reasonable discretion) after such formation or acquisition, to the extent reasonably requested by the Administrative Agent, deliver to the Administrative Agent a signed copy of a favorable opinion (containing customary exceptions and limitations)opinion, addressed to the Collateral Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to (A) the matters contained in clauses (i) and (ii) above, and as to such other matters as the Administrative Agent may reasonably request and being substantially consistent with the opinions delivered pursuant to Section 4.01(a)(v) on the Closing Date.
(b) Subject to any limitations set forth in the Security Agreement with respect to particular types of assets or property, in the event that any Loan Party acquires any assets or property not referred to in Section 6.12(a) or any fee interest in any real property (with a fair market value in excess of $5,000,000 in the case of such real property), and such assets, property or interest in real property have not otherwise been made subject to the Lien of the Collateral Documents in favor of the Administrative Agent, for the benefit of Secured Parties, then such Loan Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Section 4.01(a)(iii), with respect to each such asset, property or interest in real property (other than Excluded Assets (as defined in the Security Agreement)), that the Administrative Agent shall reasonably request to create in favor of the Administrative Agent, for the benefit of Secured Parties, a valid and perfected (subject to Section 4.7(b) of the Security Agreement in the case of IP Rights) first priority (other than with respect to Permitted Prior Liens) security interest in such assets, property or interest in real property. The Administrative Agent shall receive from the applicable Loan Party within 90 days following the date that such Loan Party acquires any fee interest in any real property with a fair market value in excess of $5,000,000 (“Mortgaged Property”) (or such longer period of time as may be agreed to by the Administrative Agent in its reasonable discretion), the following documents and instruments:
(i) a mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated, in favor of the Administrative Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to Administrative Agent, which mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Liens permitted by Section 7.01 applicable to such Mortgaged Property;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to and reasonably required by the Administrative Agent, insuring the mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable and are available in the relevant jurisdiction;
(iii) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to Administrative Agent, including ExpressMaps prepared by First American Commercial Due Diligence Services, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before the date on which a mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), either (i) certified by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent or (ii) as to ExpressMaps, in form and substance reasonably acceptable to the issuer of the Mortgage Policies to delete the standard survey exceptions and to issue endorsements to the same extent as such exceptions could have been deleted and such endorsements issued had an ALTA/ACSM Survey been provided rather than an ExpressMap;
(iv) aboveall such other items as shall be reasonably necessary in the opinion of counsel to the Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, subject only to Liens permitted by Section 7.01;
(v) opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and validity of the mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) to the extent any Mortgaged Property is subject to the provisions of the Flood Insurance Laws, (Bi) (x) concurrently with the delivery of the mortgage in favor of the Administrative Agent in connection therewith, and (y) at any other time if necessary for compliance with applicable Flood Insurance Laws, a standard flood hazard determination form for such guarantiesMortgaged Property and (ii) if improvements located on such Mortgaged Property are located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), guaranty supplementsevidence of flood insurance in such amount as the Administrative Agent may from time to time reasonably require, mortgagesand otherwise to ensure compliance with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, pledges, assignments, security agreement supplements, intellectual Property security agreements, intellectual Property security agreement supplements and security agreements being legal, valid and binding obligations of each as it may be amended from time to time (the “Flood Insurance Laws”).
(c) If any Loan Party party thereto enforceable is prohibited from providing a Lien on the Equity Interests it owns in accordance with their terms, as a Project Company pursuant to the matters contained requirements of Section 6.12(a) due to the terms of any Project-Level Indebtedness entered into by such Project Company after the Closing Date, and such prohibition was not implemented by the Borrower or any of its Affiliates primarily to prevent such Equity Interests from being Collateral (as determined from the standpoint of the Borrower (rather than any lenders of Project-Level Indebtedness)), then the Borrower shall provide written notice of the foregoing to the Administrative Agent and any such Lien on such Equity Interests under the Loan Documents shall automatically be discharged and released without any further action by any Person effective as of the time of entering into of such Project-Level Indebtedness Document containing such prohibition. The Administrative Agent hereby agrees to execute and deliver such documentation (including, without limitation, releases and UCC termination statements with respect to any such pledge) at the Borrower’s expense as the Borrower may reasonably request to evidence any such discharge and release provided for in clause (iv) above,this Section 6.12 and the Revolving Credit Lenders hereby authorize the Administrative Agent to do so.
Appears in 1 contract
Samples: Credit Agreement (NRG Yield, Inc.)