Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including: (a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)): (i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion: (A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent; (B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; (C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent; (D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and (ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and (iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and (i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b). (c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 3 contracts
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary), (ii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or (other than an Excluded Subsidiary), (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary (other than an Excluded Subsidiary), (yiv) upon the acquisition of any material assets by the Borrower or any Restricted Subsidiary Guarantor that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary or (zv) with respect to any Subsidiary at the time it becomes designation of a Loan PartyDiscretionary Guarantor, for any material assets held by such Subsidiary on or before the date that is sixty (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (4560) days (or after the end of such greater number of days specified below) after Fiscal Quarter in which such formation, acquisition transaction or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Parent Borrower shall (A) in cause such Restricted Subsidiary or Discretionary Guarantor to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevant Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required Discretionary Guarantor to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary or Discretionary Guarantor, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardClosing Date) where it reasonably determines, provided that in consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverParent Borrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) accomplished without undue effort or expense by the Borrower shall obtain time or times at which it would otherwise be required to be accomplished by this Agreement or the security interests Collateral Documents, and Guarantees set forth on Schedule 1.1A on or prior each Lender hereby consents to the dates corresponding to any such security interests and Guarantees set forth on Schedule 1.1A; and extension of time, (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents, (iii) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, (iv) no Loan Party will take, or cause the relevant Loan Party, be required to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything take any action to the contrary contained hereinextent limited, restricted or not required by the Collateral and Guarantee Requirement and any other Loan Document, (v) in no assets event will the Collateral include any Excluded Assets, (xvi) no action shall be required to perfect a Lien (1) in any asset in respect of which the perfection of a security interest therein would violate the terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesscapital leases, purchase money and similar financings), in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law, (2) in any asset in respect of which were the perfection of a security interest therein would trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination and which is otherwise eligible for inclusion in other applicable law notwithstanding the calculation of relevant prohibition, violation or termination right and/or (3) with respect to Letter-of-Credit Rights to the Borrowing Base extent that a security interest therein cannot be perfected by filing a Form UCC-1 (or the Term Borrowing Base, may be included in the calculation of the Borrowing Base similar) financing statement; (vii) any joinder or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and examiners reasonably satisfactory correct to the extent required thereby or by the terms of any other Loan Document; (viii) any time periods to comply with the foregoing Section 5.12 shall not apply to Discretionary Guarantors (provided that such entity shall not be deemed a Guarantor or Discretionary Guarantor until such entity has complied with such requirements); and (ix) the Administrative Agent and shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (B) such including any mortgage, stamp, intangibles or other due diligence with respect tax or expenses relating to such assets Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Parent Borrower and the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionAgent.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be is satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary, but including any Subsidiary or that ceases to constitute an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets (including Material Real Property) by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than (1) assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien), and (2) Excluded Property (as defined in the Security Agreement)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(Bii) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Ciii) within forty-five (45) days after such formation, acquisition or designation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver (A) any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and (B) instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided that no such Material Domestic Subsidiary shall be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Div) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC and PPSA financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect 8.12; provided that no such Material Domestic Subsidiary shall be required to all Deposit Accounts; andenter into any Collateral Documents or other pledge or security documents governed or purported to be governed by foreign law;
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the written request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iivi) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee RequirementSection 8.13, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to set forth in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionMaterial Real Property.
Appears in 3 contracts
Samples: Abl Credit Agreement (99 Cents Only Stores LLC), Abl Credit Agreement (99 Cents Only Stores LLC), Credit Agreement (99 Cents Only Stores)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(ai) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) Subsidiaries by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary then at the time it becomes a Loan PartyBorrower’s expense, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) 30 days (or such greater number of days specified below) after such formation, acquisition formation or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designationacquisition, cause each such Material Domestic Subsidiary, and cause each direct and indirect parent of such Subsidiary that is required to become a Guarantor pursuant to formed under the Collateral and Guarantee Requirement laws of the United States (if it has not already done so), to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplementsa guaranty or guaranty supplement, Intellectual Property Security Agreements in form and substance satisfactory to the Collateral Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) Within 15 Business Days after any Material Acquisition, furnish to the Collateral Agent a description of the real and personal properties of the Material Target of such Material Acquisition in detail satisfactory to the Collateral Agent;
(iii) Within 30 days after any Material Acquisition of assets by any Loan Party, duly execute and deliver, and cause such Loan Party to duly execute and deliver, to the Collateral Agent such additional mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and other security agreements and documents (includingas specified by, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent, with respect to the Material Target of such Material Acquisition;
(iv) Within 30 days after any Material Acquisition of any new Subsidiary, (A) duly execute and deliver to the Collateral Agent pledges of the Equity Interests of the Material Target of such Material Acquisition and (consistent B) deliver any certificates representing such pledged Equity Interests, together with appropriate stock powers, to the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date)Agent, in each case granting Liens required by as specified by, and in form and substance satisfactory to the Collateral and Guarantee RequirementAgent, securing payment of all of the obligations of the Loan Parties under the Loan Documents; provided that if the Material Target of such Material Acquisition is a CFC, only 65% of such Equity Interests shall be pledged in favor of the Secured Parties;
(Cv) Within 30 days after any Material Acquisition of any new Domestic Subsidiary, cause each the Material Target of such Material Domestic Subsidiary that is required Acquisition to become a Guarantor pursuant (A) duly execute and deliver to the Collateral Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and Guarantee Requirement other security agreements with respect to deliver any all tangible and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant intangible assets of such Material Target, as specified by, and in form and substance satisfactory to the Collateral and Guarantee RequirementAgent, accompanied by undated stock powers or other appropriate instruments securing payment of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent all of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to obligations of the Collateral Loan Parties under the Loan Documents and Guarantee Requirement to take (B) take, whatever action (including including, without limitation, the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Collateral Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and Guarantee Requirementsecurity agreements delivered pursuant to this Section 5.01(j), enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(iivi) within forty-five (45) Within 30 days (after any Material Acquisition or within one hundred and eighty (180) days (the formation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case acquisition of Mortgages and related documents specified in Section 8.13(b)) after the request therefor any new direct or indirect Domestic Subsidiaries by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)any Loan Party, deliver to the Administrative Collateral Agent, upon the request of the Collateral Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Collateral Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Collateral Agent as to (1) the matters contained in clauses (i), (iii), (iv) and (v) above, (2) such guaranties, guaranty supplements, mortgages, pledges, assignments, security agreement supplements, 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, (3) such recordings, filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such properties, and (4) such other matters set forth in this Section 8.11(a) as the Administrative Collateral Agent may reasonably request; and
(iiivii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver At any time and from time to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Datetime, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyexecute and deliver, and such Material Real Property shall not already be subject cause each Loan Party to a perfected Lien pursuant to the Collateral execute and Guarantee Requirementdeliver, the Borrower shall give notice thereof to the Administrative Agent any and will all further instruments and documents and take, or and cause the relevant each Loan Party, Party to take, all such other action as the actions referred to Collateral Agent may deem reasonably necessary or desirable in Section 8.13(b).
(c) Notwithstanding anything to obtaining the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard tofull benefits of, or counting againstin perfecting and preserving the Liens of, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any periodsuch guaranties, as contained in Section 7.4) (A) Inventory appraisals mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsecurity agreements.
Appears in 2 contracts
Samples: Credit Agreement (Esterline Technologies Corp), Credit Agreement (Esterline Technologies Corp)
Covenant to Guarantee Obligations and Give Security. (i) At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of such time as any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by Subsidiaries of any Loan Party, Party are formed or acquired by such Loan Party or at such time as any Minor Subsidiary shall have revenues which exceed US$250,000 for the designation in accordance with Section 8.3, twelve-month period ending on the last day of any existing direct the most recent fiscal quarter of Crompton Corp. or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic the aggregate book value of the assets of such Minor Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary as at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation end of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number most recent fiscal quarter of days specified below) after such formation, acquisition or designation orCrompton Corp. exceeds US$250,000, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish case to the Administrative Agent a description extent not prohibited by the terms of the Material Real Properties owned by such Material Domestic Subsidiary Uniroyal Indentures then in detail reasonably satisfactory to effect and at the Administrative Agent;
(B) expense of the Borrowers, within forty-five (45) 30 days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition formation or designationacquisition, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to (other than any Foreign Subsidiary) or each such Minor Subsidiary, as the Collateral case may be, and Guarantee Requirement cause each direct and indirect parent (other than the Borrowers and any Foreign Subsidiary) of such Material Subsidiary or each such Minor Subsidiary, as the case may be, (if it has not already done so), to duly execute and deliver to the Administrative Agent Security Agreement Supplementsa guaranty, Intellectual Property Security Agreements in form and substance satisfactory to the Agent, guaranteeing the other Loan Parties' Obligations under the Loan Documents;
(ii) At any time prior to the Collateral Release Date, at such time as any new direct or indirect Material Subsidiaries of any Loan Party are formed or acquired by such Loan Party or at such time as any Minor Subsidiary shall have revenues which exceed US$250,000 for the twelve-month period ending on the last day of the most recent fiscal quarter of Crompton Corp. or the aggregate book value of the assets of such Minor Subsidiary, as at the end of the most recent fiscal quarter of Crompton Corp. exceeds US$250,000, in each case to the extent not prohibited by the terms of the Uniroyal Indentures then in effect and at the expense of the Borrowers, within 30 days after such formation or acquisition, duly execute and deliver, and cause each such Material Subsidiary (other than any Foreign Subsidiary) or each such Minor Subsidiary, as the case may be, and each direct and indirect parent of such Material Subsidiary or each such Minor Subsidiary, as the case may be, (other than any Foreign Subsidiary except to the extent provided in the proviso below), if it has not already done so, to duly execute and deliver, to the Agent, in the case of Crompton Corp. or any of its Subsidiaries (other than Uniroyal Corp. and its Subsidiaries), pledge agreements (pledging the capital stock of its Subsidiaries, except to the extent provided in the proviso below) and, in the case of any direct or indirect Subsidiary of Uniroyal Corp., security agreements (granting a security interest in Inventory and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real PropertyReceivables), as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent, securing payment of all the Obligations of such Borrower, such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such properties; provided that with respect to the pledge of the capital stock of any Foreign Subsidiary, such pledge shall cover not more than 66% of the outstanding capital stock of such Foreign Subsidiary if it is directly owned by a Loan Party and not cover any of the outstanding capital stock of such Foreign Subsidiary if it is directly or indirectly owned by another Foreign Subsidiary;
(iii) At any time prior to the Collateral Release Date, upon the request of the Agent (consistent with following the Mortgages, Security Agreement, Intellectual Property Security Agreements occurrence and other Collateral Documents in effect on during the Restatement Effective Date)continuance of an Event of Default, in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to not prohibited by the Collateral terms of the Uniroyal Indentures then in effect and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments at the expense of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;Borrowers:
(DA) within forty-five (45) 30 days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formationrequest, acquisition or designationduly execute and deliver, (1) take and cause the applicable Material Domestic Subsidiary each of its Subsidiaries (other than any Foreign Subsidiary) and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant (if it has not already done so) (other than any Foreign Subsidiary except to the Collateral extent required in the proviso below) to duly execute and Guarantee Requirement deliver, to take the Agent mortgages, pledges, assignments and other security agreements, as specified by and in form and substance satisfactory to the Agent, securing payment of all the Obligations of such Borrower, such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such properties; provided that with respect to the pledge of the capital stock of any Foreign Subsidiary, such pledge shall cover not more than 66% of the outstanding capital stock of such Foreign Subsidiary if it is directly owned by a Loan Party and not cover any of the outstanding capital stock of such Foreign Subsidiary if it is directly or indirectly owned by another Foreign Subsidiary; and
(B) within 30 days after such request, take, and cause such Subsidiary (other than any Foreign Subsidiary) or such parent (other than any Foreign Subsidiary) to take, whatever action (including including, without limitation, the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral mortgages, pledges, assignments and Guarantee Requirementsecurity agreements delivered pursuant to this Section 5.01(k), enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(iiiv) within forty-five (45) Within 60 days (after such formation, acquisition or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)request, deliver to the Administrative Agent, upon the request of the Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the guaranties, mortgages, pledges, assignments and security agreements referred to in clauses (i), (ii) and (iii) above being the legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iiiv) At any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as promptly as practicable after the reasonable request therefor by Agent may deem necessary or desirable in obtaining the Administrative Agentfull benefits of, deliver or in perfecting and preserving the Liens of, the guaranties, mortgages, pledges, assignments and security agreements referred to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals in clauses (if required under FIRREAi), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (Biii) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionabove.
Appears in 2 contracts
Samples: Credit Agreement (Crompton & Knowles Corp), Credit Agreement (Uniroyal Chemical Co Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon (x1) upon the formation or acquisition of any new direct or indirect Wholly-Wholly Owned Material Subsidiary that is (in each case, other than an Excluded Subsidiary) by any Loan Party, (2) the designation in accordance with Section 6.14 of any existing direct or indirect Wholly Owned Material Subsidiary (in each case, other than an Excluded Subsidiary) as a Material Restricted Subsidiary, (3) any Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-becoming a Wholly Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y4) upon the acquisition of any material assets by the Borrower new direct or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such indirect non-Wholly Owned Material Subsidiary (in each case, other than assets constituting Collateral under an Excluded Subsidiary) by any Loan Party pursuant to Section 7.02(j) that is required to become a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)Guarantor in accordance with Section 7.02(j)(A):
(i) within (x) forty-five (45) days or (or such greater number of days specified belowy) with respect to any items pertaining to Material Real Property (other than the items identified in Section 6.11(a)(iii)), ninety (90) days, after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents in effect on the Restatement Effective Closing Date, or delivered thereafter pursuant to Section 6.13(b)), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable such Material Domestic Subsidiary and each direct or indirect parent of the applicable such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, any existing title reports, surveys and or environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; andreports.
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iib) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and within ninety (90) days of such acquisition shall cause such Material Real Property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and (within ninety (90) days of such acquisition) will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (IASIS Healthcare LLC), Credit Agreement (IASIS Healthcare LLC)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon on or before the acquisition of any material assets by date that is 60 days after the Borrower relevant formation, acquisition, designation or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days cessation occurred (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
reasonably agree), the Borrower shall (A) cause each such Material Domestic Restricted Subsidiary that is required (other than any Excluded Subsidiary) to become a Subsidiary Guarantor under comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary to furnish deliver to the Administrative Agent a description customary opinion of the Material Real Properties owned by counsel for such Material Domestic Subsidiary in detail reasonably satisfactory Restricted Subsidiary, addressed to the Administrative Agent;Agent and the Lenders; provided, however, that notwithstanding the foregoing, no Subsidiary that is an Excluded Subsidiary shall be required to take any action described in this Section 5.11(a).
(Bb) within forty-five (45) days (or within one hundred and eighty (180) Within 60 days (or such longer period as the Administrative Agent may reasonably agree in its (provided that the Administrative Agent will use commercially reasonable discretionefforts to confirm Lenders do not need additional time to complete independent due diligence with respect to any potential Material Real Estate Assets before entering into a new Mortgage)) in (1) after the Closing Date, in the case of Mortgages and related documents specified in Section 8.13(b)Material Real Estate Assets (other than any Excluded Asset) owned by Loan Parties on the Closing Date or (2) after such formationthe acquisition by any Loan Party of any Material Real Estate Asset (other than any Excluded Asset), acquisition or designation, cause each in the case of such Material Domestic Real Estate Assets acquired after the Closing Date, the Borrower shall cause such Loan Party to comply with the requirements set forth in clause (c) of the definition of “Collateral and Guarantee Requirement” with respect to the relevant Material Real Estate Asset; it being understood and agreed that, with respect to any Material Real Estate Asset owned by any Restricted Subsidiary that at the time such Restricted Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Loan Party under Section 8.13(b) with respect to Mortgages of any Material Real Property5.11(a), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Restricted Subsidiary on the first day on which it becomes a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.11(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, it is understood and agreed that:
(i) the Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time,
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents,
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of Capital Stock or Material Debt Instruments, in each case, to the extent included in the Collateral),
(iv) no assets Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(v) no Loan Party will be required to (A) take any action outside the U.S. to grant or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule;
(vi) in no event will the Collateral include any Excluded Asset,
(vii) no action shall be required to perfect any Lien with respect to (A) any vehicle or other asset subject to a certificate of title, and any retention of title, extended retention of title rights, or similar rights, (B) Letter-of-Credit Rights, (C) the Capital Stock of any Immaterial Subsidiary or (D) the Capital Stock of any Person that is not a Subsidiary which, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein is perfected by filing a Form UCC-1 financing statement (which, for the avoidance of doubt shall be the only required perfection action),
(viii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law,
(ix) any joinder or supplement to any Loan Guaranty, any Collateral Document or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.11(a) may, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty with respect to such Restricted Subsidiary set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document,
(x) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any entity that becomes a Lien granted in, those assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, in each casestamp, which were not included in intangibles or other Tax or expenses relating to such Lien) outweighs the analysis under benefit to the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation Lenders of the Borrowing Base or the Term Borrowing Basesecurity afforded thereby, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of as reasonably determined by the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory and
(xi) no Subsidiary of the Borrower shall be required to provide any guarantee, pledge or asset support agreement that, in the reasonable judgment of the Borrower in consultation with the Administrative Agent and (B) such other due diligence with respect to such assets as Agent, would subject the Administrative Agent may require in its Permitted Discretion, all Borrower or any Subsidiary of the results Borrower to any adverse tax consequence as a result of the foregoing to be satisfactory to application of Section 956 of the Administrative Agent in its Permitted DiscretionCode.
Appears in 2 contracts
Samples: Credit Agreement (Victory Capital Holdings, Inc.), Credit Agreement (Victory Capital Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) If after the Borrower’s expenseRestatement Effective Date any Material Domestic Subsidiary of Holdings (other than an Excluded Subsidiary) is formed or acquired (or ceases to constitute an Excluded Subsidiary) then in any such case, subject to within fifteen days after such occurrence, notify the provisions of Administrative Agent thereof and, within sixty days after such occurrence (as such period may be extended by the Administrative Agent in its reasonable discretion), cause the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfiedsatisfied (other than pursuant to clause (c) of the definition thereof in respect of Material Owned Real Property, including:which shall be subject to clause (b) below).
(ab) (x) upon If, after the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic SubsidiaryRestatement Effective Date, (yi) upon the acquisition of any material assets (including any owned real property constituting Material Owned Real Property) are acquired by the Borrower or any other Loan Party or are held by any Restricted Subsidiary Guarantor on or (z) with respect to any Subsidiary at after the time it becomes a Loan Party, for any material assets held by such Subsidiary Party pursuant to this Section 6.12 or the Collateral and Guarantee Requirement (in each case, other than assets constituting Collateral under a Collateral Document that becomes become subject to the Lien created by such Collateral Document upon acquisition thereof or constituting Excluded Assets or described in clause (without limitation b)(i)(B) of the obligations to perfect definition of “Collateral and Guarantee Requirement”), or (ii) any commercial tort claim with a value in excess of $2,500,000 arises, then in any such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as case notify the Administrative Agent may agree in its reasonable discretion:
thereof within fifteen days of any such occurrence, and (A) cause each upon request of the Administrative Agent for those assets and actions subject to such Material Domestic Subsidiary that is required request pursuant to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to Requirement) within sixty days after such occurrence or request (as such period may be extended by the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in cause such assets to be subjected to a Lien securing the case of Mortgages Obligations and related documents specified in Section 8.13(b)) after take and cause the other Loan Parties to take, such formationactions as shall be necessary and reasonably requested by the Administrative Agent to grant and perfect such Liens, acquisition or designation, cause each such Material Domestic Subsidiary that is including actions as required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and/or the applicable Collateral Documents; provided that in the event any Material Owned Real Property is or is required to duly execute and deliver be mortgaged pursuant to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (includingthis Section 6.12(b), the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)Borrower or other Loan Party, as reasonably requested by and in form and substance reasonably satisfactory applicable, shall not be required to the Administrative Agent (consistent comply with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;Requirement and this Section 6.12 with respect to such Material Owned Real Property until a reasonable time following the acquisition thereof (or time the Person owning such real property becomes a Loan Party or the time such real property becomes Material Owned Real Property, as the case may be), and in no event shall compliance be required until the latest of (1) 90 days following such acquisition (or such Person becoming a Loan Party or such real property becoming Material Owned Real Property, as the case may be), (2) the Administrative Agent completing all required diligence related to flood insurance and flood zone status of such property, and (3) otherwise such longer time period as agreed to by the Administrative Agent in its reasonable discretion.
(Cc) If at any time the Borrower obtains knowledge that the Collateral and Guarantee Requirement has not been satisfied for any reason (including by reason of notice thereof by the Administrative Agent or any Lender) or has not been waived, then within fifteen days of receipt of such knowledge notify the Administrative Agent thereof and, within sixty days after such notice (or such longer time period as agreed to by the Administrative Agent in its reasonable discretion), cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests be satisfied with respect thereto.
(to the extent certificatedd) that are required Furnish (or cause to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local lawfurnished) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy promptly (and in any event within five days prior or such other period as reasonably agreed to by the Administrative Agent) written notice of an opinionany change (i) in any Loan Party’s legal name (as set forth in its certificate of organization or like document), addressed to or (ii) in the jurisdiction of organization or formation of any Loan Party or in the form of its organization.
(e) Promptly notify the Administrative Agent and if any portion of the other Secured PartiesCollateral is damaged or destroyed, of counsel for which individually or in the Loan Parties aggregate could reasonably acceptable be expected to the Administrative Agent as have a Material Adverse Effect.
(f) In connection with any requirement to such matters take actions set forth in this Section 8.11(a) as 6.12, the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agentwaive such requirement, deliver to the Administrative Agent with respect to each Material Real Propertyor grant extensions of required time therefore, title reportswhere, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any discretion, it determines that such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on accomplished without undue effort or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) expense. Notwithstanding anything to the contrary contained herein, no assets (x) if at any time any Domestic Subsidiary of any entity that Holdings becomes a Loan Party as borrower or guarantor under the ABL Documents and such Domestic Subsidiary is not already a result Subsidiary Guarantor, such Domestic Subsidiary shall be required (i) to become a Subsidiary Guarantor hereunder in accordance with the terms of this Section 6.12 and (ii) to otherwise comply with all applicable terms of this Section 6.12, regardless of whether or not such Domestic Subsidiary would be required to do so; provided that, in no event shall a CFC Holdco or any direct or indirect Subsidiary of a Permitted Acquisition or (y) acquired from Subsidiary that is a third party by CFC be required to become a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionSubsidiary Guarantor.
Appears in 2 contracts
Samples: Conforming Changes Amendment (Hyster-Yale Materials Handling, Inc.), Term Loan Credit Agreement (Hyster-Yale Materials Handling, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Restricted Subsidiary (in each case, other than an Unrestricted Subsidiary or which is not an Excluded Subsidiary) or at any time that a Subsidiary ceases to be an Excluded Subsidiary or the acquisition by any Loan Party, the designation in accordance with Section 8.3, Party of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes property not otherwise subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations Collateral Documents (provided that notwithstanding the foregoing, any Subsidiary of the Borrower that Guarantees any Junior Financing or any Permitted Refinancing Indebtedness of any of the foregoing shall be required to perfect be a Guarantor hereunder for so long as it Guarantees such LienIndebtedness)):, then the Borrower shall, at the Borrower’s expense:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer notice period as agreed to by the Administrative Agent may agree Agent, in its reasonable sole discretion) , in in the case of Mortgages and related documents specified in Section 8.13(b)writing) after such formationformation or acquisition, acquisition or designation, (i) cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent a Guaranty Supplement, guaranteeing the other Loan Parties’ obligations under the Loan Documents, a Security Agreement SupplementsSupplement, an Intellectual Property Security Agreements Agreement and other security and pledge agreements required under the Loan Documents securing the Loan Obligations of such Restricted Subsidiary, and documents (includingii) cause each parent of such Restricted Subsidiary which is a Loan Party to take all action necessary to cause the Equity Interests in such Restricted Subsidiary to be pledged to the Administrative Agent pursuant to such Loan Party’s Security Agreement,
(ii) within 60 days (or such longer notice period agreed to by the Administrative Agent, in its sole discretion, in writing) after the documents listed in Section 8.13(b) with respect to Mortgages formation or acquisition of such Restricted Subsidiary or after acquisition by any Loan Party of any Material Real Property), as reasonably requested by cause the Loan Party which owns such Material Real Property to duly execute and deliver to the Administrative Agent a deed of trust or mortgage thereon, in form and substance reasonably satisfactory to the Administrative Agent Agent, securing payment of all the Loan Obligations of such Loan Party (consistent each, a “Mortgage”),
(iii) within 30 days with the Mortgages, Security Agreement, Intellectual Property Security Agreements respect to Liens created pursuant to clause (i) of this Section 6.12 and other Collateral Documents in effect on the Restatement Effective Date)60 days after such formation or acquisition with respect to Liens created pursuant to clause (ii) of this Section 6.12 (or, in each case granting Liens required either case, such longer notice period agreed to by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree , in its reasonable sole discretion) , in the case of Mortgages and related documents specified in Section 8.13(bwriting)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Restricted Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so) to take whatever action (including the recording of Mortgages, Mortgages and the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificatedstatements) as may be necessary in to perfect the reasonable opinion Liens created pursuant to clauses (i) and (ii) of the Administrative Agent this Section 6.12 and to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) and perfected Liens required by the Collateral and Guarantee Requirementon such property, enforceable against all third parties in accordance with their termsparties, except as such enforceability may be limited subject to the Liens permitted by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and7.01,
(iiiv) within forty-five (45) days (or within one hundred and eighty (180) 60 days (or such longer notice period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor agreed to by the Administrative Agent (or such longer period as the Administrative Agent may agree Agent, in its reasonable sole discretion), in writing) after such formation or acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such the matters set forth contained in this Section 8.11(aclauses (i), (ii) as and (iii) above,
(v) upon the request of the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the in its reasonable request therefor by the Administrative Agentdiscretion, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys surveys, engineering, soils and other reports, and environmental assessment reports reports, each in scope, form and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date substance reasonably satisfactory to the Administrative Agent; , provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts Loan Party shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentMaterial Real Property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition receipt thereof, be delivered to the Administrative Agent, and
(vi) upon the request of the Administrative Agent in its reasonable discretion, with respect to each Material Real Property, obtain flood insurance in such total amount as the Administrative Agent may from time to time reasonably require, if at any time the area in which any improvements located on any Material Real Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Borrower Federal Emergency Management Agency (or any Loan Partysuccessor agency), and such Material Real Property shall not already be subject to a perfected Lien pursuant to otherwise comply with the Collateral Flood Insurance Laws.
(b) Upon request by the Administrative Agent, if an Event of Default occurs and Guarantee Requirementis continuing, the Borrower shall give notice thereof and the Subsidiary Guarantors will exercise any rights and remedies then available to the Administrative Agent them under any and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)all Secured Intercompany Loans.
(c) On each date on which the Borrower delivers a Compliance Certificate under Section 6.02(b) with respect to the fiscal periods ending June 30 and December 31 (“Note Delivery Dates”), the Borrower will furnish to the Administrative Agent each Secured Intercompany Note received by it from a Qualified Subsidiary since the Signing Date or the latest Note Delivery Date, as the case may be, together with an executed dated allonge with respect to each such Secured Intercompany Note; provided that if any Event of Default occurs and is continuing, upon notice from the Administrative Agent, the Borrower shall promptly deliver any and all Secured Intercompany Notes not yet furnished to the Administrative Agent. Upon the maturity of any Secured Intercompany Note, or upon any sale to any Person other than a Loan Party or refinancing which results in any Person other than a Loan Party becoming the payee of any Secured Intercompany Note pursuant to an Intercompany Loan Refinancing permitted by this Agreement, or upon any other disposition (including by distribution or assignment) permitted by this Agreement to any Person other than a Loan Party or refinancing which results in any Person other than a Loan Party becoming the payee of any Secured Intercompany Note permitted by this Agreement, the Administrative Agent will promptly upon written request of the Borrower together with such certificates as the Administrative Agent may reasonably request (i) deliver such Secured Intercompany Note to the Borrower or to any other Person to which the Borrower directs such delivery and (ii) acknowledge the release of the Administrative Agent’s Lien on such Secured Intercompany Note and any assets or Equity Interests securing such note. Notwithstanding anything to the contrary contained herein, no assets (x) of the Borrower shall not be required to furnish any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired Secured Intercompany Note received by it from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory Qualified Subsidiary to the Administrative Agent and (B) such other due diligence except in accordance with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionthis Section 6.12(c).
Appears in 2 contracts
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Security Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingBorrower shall:
(a) upon, after the Third Amendment Effective Date, (x1) upon the formation or acquisition of any new direct or indirect Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (2) the designation in accordance with Section 8.3, 5.13 of any existing direct or indirect Wholly-Owned wholly owned domestic Unrestricted Subsidiary that is of a Material Domestic Subsidiary Loan Party as a Restricted Subsidiary or (3) any Domestic Subsidiary becoming a Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, with respect to clauses (1), (2) and (3), other than assets constituting Collateral under (x) an Unrestricted Subsidiary or (y) a Collateral Document newly acquired Subsidiary whose Indebtedness outstanding at the time of its acquisition would restrict the ability of such Subsidiary to become a Subsidiary Guarantor or require that becomes subject a Lien securing other Indebtedness also secure any outstanding Indebtedness of such newly acquired Subsidiary, as designated in writing and delivered to the Lien created by such Administrative Agent and Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Agent:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Wholly Owned Domestic Subsidiary that is required (a “New Subsidiary Guarantor”) to become execute a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish counterpart to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative AgentGuarantee and Collateral Agreement;
(B) cause the security interests granted by such New Subsidiary Guarantor pursuant to the Guarantee and Collateral Agreement to be perfected to the extent required by the Guarantee and Collateral Agreement;
(ii) within forty-five ninety (4590) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in in discretion deliver to the case of Mortgages and related documents specified in Section 8.13(b)) after Collateral Agent, to the extent such formation, acquisition or designation, cause each such Material Domestic designation occurs after the Third Amendment Effective Date:
(A) an Additional Mortgage duly executed and acknowledged by the New Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any each Material Real Property)Property owned or leased by such New Subsidiary Guarantor, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as reasonably requested by and shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent;
(consistent B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with the Mortgagesrespect to each such Mortgaged Property to be subject to an Additional Mortgage on which a “Building” (as defined in 12 CFR Chapter III, Security Agreement, Intellectual Property Security Agreements Section 339.2) is located (together with a notice about special flood hazard area status and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required flood disaster assistance duly executed by the Collateral Borrower and Guarantee Requirementeach Loan Party relating thereto);
(C) cause a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each such Material Domestic Subsidiary of which shall (1) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (2) name the Collateral Agent, on behalf of the Secured Parties, as additional insured, (3) in the case of flood insurance, (x) identify the addresses of each property located in a special flood hazard area, (y) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (z) provide that is required to become a Guarantor pursuant the insurer will give the Collateral Agent forty-five (45) days’ written notice of cancellation or non-renewal and (4) otherwise be in form and substance satisfactory to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(E) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(b) within ninety (90) days after the acquisition by any Loan Party of any Material Real Property owned by such Loan Party, to the extent acquired after the Third Amendment Effective Date,
(i) an Additional Mortgage duly executed and acknowledged by such Loan Party with respect to each Material Real Property owned or leased by such Loan party, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Collateral Agent;
(ii) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such Mortgaged Property on which a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto);
(iii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (B) name the Collateral Agent, on behalf of the Secured Parties, as additional insured, (C) in the case of flood insurance, (1) identify the addresses of each property located in a special flood hazard areas, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (3) provide that the insurer will give the Collateral Agent forty-five (45) days days’ written notice of cancellation or non-renewal and (D) be otherwise in form and substance satisfactory to the Collateral Agent;
(iv) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(v) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(c) On the date that all of the Xxxxxx 2.25% Convertible Notes and Xxxxxx 3.25% Convertible Notes are paid in full or within one hundred discharged, the requirements of Section 5.10(b) shall apply to the Xxxxxx Principal Property as if it had been acquired on such date. Notwithstanding anything to the contrary herein, (1) the Borrower and eighty its subsidiaries shall not be required to grant a security interest in any (180A) days Excluded Assets or (B) any Real Property or such longer period other property held by the Borrower or any of its Restricted Subsidiaries as a lessee under a lease if the Administrative Collateral Agent may agree determines (in its reasonable discretion) in that the case of Mortgages and related documents specified in Section 8.13(b)) after Real Property or other property subject to such formation, acquisition lease is not material to the business or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent operations of the applicable Material Domestic Subsidiary that is required to become Borrower and its subsidiaries, taken as a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgageswhole, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with if, and for so long as, the requirements creation or perfection of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (pledges of or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree security interests in its reasonable discretion) particular assets, in the case reasonable judgment of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Collateral Agent and the other Secured PartiesBorrower, the cost of counsel for creating or perfecting such pledges or security interests in such assets shall be excessive in view of the Loan Parties reasonably acceptable benefits to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor be obtained by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consentLenders therefrom, such consent canassets need not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)pledged.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (Massey Energy Co), Credit Agreement (Alpha Natural Resources, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 6.13 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic wholly owned Subsidiary as a Restricted Subsidiary or and any wholly owned Domestic Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five sixty (4560) days (or such greater number of days as specified below) after such formation, acquisition or designation or, in each case, (or such longer period as the Administrative Agent may agree in its reasonable sole discretion:):
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five ninety (4590) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b)6.12(b) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements (other than in respect of copyrights) and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.12(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements (other than in respect of copyrights) and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing its Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five ninety (4590) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)6.12(b) after such formation, acquisition or designation, (1) take and cause the applicable such Material Domestic Subsidiary and each direct or indirect parent of the applicable such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law),
(E) within sixty (60) days in the case of Intellectual Property Security Agreements in respect of U.S. copyright registrations and (2) comply applications therefor, after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Intellectual Property Security Agreements in respect of such copyrights in form and substance consistent with the requirements Intellectual Property Security Agreements in respect of Section 8.12 with respect to all Deposit Accounts; copyrights in effect on the Closing Date, in each case granting Liens required by the Collateral and Guarantee Requirement, and
(ii) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.12(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable sole discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; andprovided that, notwithstanding the foregoing, any such opinion shall not be required to be delivered prior to the expiration of the 60-day period specified in clause (i) above or, if earlier, the date on which the requirements specified in sub-paragraphs (A) through (D) of clause (i) above have been satisfied,
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative AgentClosing Date, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals within ninety (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that 90) days (or such longer period as the Administrative Agent may agree in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(isole discretion) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and promptly thereafter shall cause such Material Real Property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b6.12(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Third Incremental Term Facility Amendment (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the Third Amendment Effective Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary), (ii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or (other than an Excluded Subsidiary), (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary (other than an Excluded Subsidiary), (yiv) upon the acquisition of any material assets by the Borrower or any Restricted Subsidiary Guarantor that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary or (zv) with respect to any Subsidiary at the time it becomes designation of a Loan PartyDiscretionary Guarantor, for any material assets held by such Subsidiary on or before the date that is sixty (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (4560) days (or after the end of such greater number of days specified below) after Fiscal Quarter in which such formation, acquisition transaction or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Borrower shall (A) in cause such Restricted Subsidiary or Discretionary Guarantor to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevant Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required Discretionary Guarantor to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary or Discretionary Guarantor, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardThird Amendment Effective Date) where it reasonably determines, provided that in consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverBorrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) accomplished without undue effort or expense by the Borrower shall obtain time or times at which it would otherwise be required to be accomplished by this Agreement or the security interests Collateral Documents, and Guarantees set forth on Schedule 1.1A on or prior each Lender hereby consents to the dates corresponding to any such security interests and Guarantees set forth on Schedule 1.1A; and extension of time, (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents, (iii) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, (iv) no Loan Party will take, or cause the relevant Loan Party, be required to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything take any action to the contrary contained hereinextent limited, restricted or not required by the Collateral and Guarantee Requirement and any other Loan Document, (v) in no assets event will the Collateral include any Excluded Assets, (xvi) no action shall be required to perfect a Lien in any asset in respect of which the perfection of a security interest therein would (1) violate the terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the Third Amendment Effective Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesscapital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law or (2) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the Third Amendment Effective Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination and which is otherwise eligible for inclusion in other applicable law notwithstanding the calculation of the Borrowing Base relevant prohibition, violation or the Term Borrowing Base, may be included in the calculation of the Borrowing Base termination right; (vii) any joinder or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the Administrative Agent extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document; and (Bviii) such other due diligence any time periods to comply with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing Section 5.12(a) shall not apply to Discretionary Guarantors (provided that such entity shall not be satisfactory to the Administrative Agent in its Permitted Discretiondeemed a Guarantor or Discretionary Guarantor until such entity has complied with such requirements).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Hayward Holdings, Inc.), First Lien Credit Agreement (Hayward Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) If after the Borrower’s expenseClosing Date (i) any Restricted Subsidiary is formed or acquired, subject (ii) any Unrestricted Subsidiary is re-designated as a Restricted Subsidiary, or (iii) any Restricted Subsidiary ceases to be an Excluded Subsidiary, then in any such case, as soon as practicable but in any event within fifteen days after such occurrence, notify the provisions of Administrative Agent thereof and, within sixty days after such occurrence (as such period may be extended by the Administrative Agent in its reasonable discretion), cause the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:.
(ab) If, after the Closing Date, any material assets (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon including the acquisition of any material assets owned (but not leased or ground-leased) real property or improvements thereto that, either individually or when combined with adjacent or related real property to which such acquired real property directly relates, has a fair market value in excess of $5,000,000) are acquired by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to are held by any Subsidiary at on or after the time it becomes a Loan Party, for any material assets held by such Subsidiary Party pursuant to this Section 6.12 or the Collateral and Guarantee Requirement (in each case, other than assets constituting Collateral under a Collateral Document that becomes become subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation or constituting Excluded Assets), or if any Material Commercial Tort Claim or Material Letter of the obligations to perfect Credit Right arises, then in any such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as case notify the Administrative Agent may agree in its reasonable discretion:
thereof within thirty days of any such occurrence, and (A) cause each upon request of the Administrative Agent for those assets and actions subject to such Material Domestic Subsidiary that is required request pursuant to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to Requirement) within sixty days after such occurrence or request (as such period may be extended by the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in cause such assets to be subjected to a Lien securing the case of Mortgages Obligations and related documents specified take and cause the other Loan Parties to take, such actions as shall be necessary and reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is 6.15 and as required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and/or the applicable Collateral Documents; provided that in the event any owned real property is mortgaged pursuant to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (includingthis Section 6.12(b), the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)Borrower or other Loan Party, as reasonably requested by and in form and substance reasonably satisfactory applicable, shall not be required to the Administrative Agent (consistent comply with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;Requirement and this Section 6.12 with respect to such owned real property until a reasonable time following the acquisition thereof (or time the Person owning such real property becomes a Loan Party, as the case may be), and in no event shall compliance be required until 90 days following such acquisition (or such Person becoming a Loan Party, as the case may be) or such longer time period as agreed to by the Administrative Agent in its reasonable discretion. Notwithstanding the foregoing, Liens required to be granted pursuant to this Section 6.12 shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents.
(Cc) If at any time the Borrower obtains knowledge that the Collateral and Guarantee Requirement has not been satisfied for any reason (including by reason of notice thereof by the Administrative Agent or any Lender), then within five Business Days of receipt of such knowledge notify the Administrative Agent thereof and, within sixty days after such notice (or such longer time period as agreed to by the Administrative Agent in its reasonable discretion), cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests be satisfied.
(to the extent certificatedd) that are required Furnish (or cause to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local lawfurnished) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed promptly (and in any event within fifteen days prior or such other period as reasonably agreed to by the Administrative Agent and Agent) written notice of any change (i) in any Loan Party’s legal name (as set forth in its certificate of organization or like document), (ii) in the other Secured Partiesjurisdiction of organization or formation of any Loan Party or in the form of its organization, of counsel for the or (iii) in any Loan Parties reasonably acceptable Party’s organizational identification number or Federal taxpayer identification number.
(e) In connection with any requirement to the Administrative Agent as to such matters take actions set forth in this Section 8.11(a) as 6.12 within a certain period of time, the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agentgrant extensions of such required time, deliver to the Administrative Agent with respect to each Material Real Propertyincluding, title reportswithout limitation, surveys and environmental assessment reports and appraisals (if required under FIRREA)where, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any discretion, it determines that such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on accomplished without undue effort or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property expense by the Borrower time or any Loan Party, and such Material Real Property shall not already times at which it would otherwise be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionaccomplished by this Section 6.12.
Appears in 2 contracts
Samples: Credit Agreement (Polypore International, Inc.), Credit Agreement (Polypore International, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Boardreports, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Covenant to Guarantee Obligations and Give Security. At From and after the Closing Date, at the Borrower’s expense, in accordance with and subject to the provisions terms, conditions, and limitations of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation formation, incorporation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 6.14 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject an Excluded Subsidiary) or upon any wholly owned Domestic Subsidiary ceasing to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):be an Excluded Subsidiary:
(i) within the later of forty-five (45) days (or such greater number ninety (90) days in the case of days specified belowany item or deliverable with respect to Material Real Property and subject to the limitations set forth in Section 6.13(b)) after or the date of delivery of the Compliance Certificate for any fiscal quarter in which such formation, incorporation, acquisition or designation occurred (or, in each case, such longer period as the Administrative Agent may agree to in its reasonable discretion) after such formation, incorporation, acquisition or designation:
(A1) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B2) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, joinders to the Guaranty, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b6.13(b) with respect and subject to Mortgages of any Material Real Property)the limitation set forth therein) required by the Collateral Documents or, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C3) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificatedcertificated and required to be delivered pursuant to the Collateral Document under which a security interest has been granted over such Equity Interests) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (14) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements under the Uniform Commercial Code or other applicable Laws and other applicable registration forms and filing statements, and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject valid, enforceable and, to the Intercreditor Agreementextent applicable under applicable Laws, perfected (to the extent required by the Collateral and Guarantee Requirement and the Collateral Documents) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days in the case of any opinion with respect to Material Real Property and subject to the limitations set forth in Section 6.13(b)) (or or, in each case, such longer period as the Administrative Agent may agree to in its reasonable discretion) discretion and, in any event, not prior to the case date of Mortgages and related documents specified delivery of the Compliance Certificate for any fiscal quarter in Section 8.13(b)which such formation, incorporation, acquisition or designation occurred) after the request reasonable request, if any, therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and;
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey i) to the extent prepared as of a date reasonably satisfactory not executed and delivered on the Closing Date, execute and deliver or cause to be executed and delivered the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests Collateral Documents and Guarantees set forth on Schedule 1.1A 1.01B on or prior to the dates corresponding to such security interests Collateral Documents and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower 1.01B or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets longer period as the Administrative Agent may require agree to in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.reasonable discretion; and
Appears in 2 contracts
Samples: Credit Agreement (Casa Systems Inc), Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary ii) the formation or an Excluded Subsidiary) by any Loan Party, acquisition after the designation in accordance with Section 8.3, Closing Date of any existing direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Canadian Subsidiary of an existing Canadian Loan Party, (iii) the designation of any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned (with respect to US Secured Obligations, to apply only to the designation of an Unrestricted Subsidiary that is a Material Domestic Subsidiary), (yiv) upon the acquisition of any material assets by the Borrower or any Restricted Subsidiary Guarantor or ceasing to be an Immaterial Subsidiary (z) with respect to any Subsidiary at the time it becomes US Secured Obligations, to apply only to a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Restricted Subsidiary that is required a Domestic Subsidiary) or (v) any Restricted Subsidiary that is an Excluded Subsidiary ceasing to become a Subsidiary Guarantor under be an Excluded Subsidiary, on or before the Collateral and Guarantee Requirement to furnish to date that is 60 days after the Administrative Agent a description end of the Material Real Properties owned by such Material Domestic Subsidiary Fiscal Quarter in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (which such transaction or within one hundred and eighty (180) days designation occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Lead Borrower shall (A) in cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevant Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardClosing Date) where it reasonably determines, provided that in consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverLead Borrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtainedaccomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents, and each Lender hereby consents to any such extension of time; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents; (iii) except as otherwise required by Section 5.15, perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of pledged Capital Stock and/or Material Debt Instruments); (iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement; (v) no Loan Party will take, be required to take any action that is limited or cause restricted by the relevant Collateral and Guarantee Requirement and any other Loan Party, Document; (vi) in no event will the Collateral include any Excluded Assets; (vii) no action shall be required to take, perfect a Lien in any asset in respect of which the actions referred to in Section 8.13(b).
perfection of a security interest therein would (c1) Notwithstanding anything to violate the contrary contained herein, no assets (x) terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesscapital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law or (2) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC, PPSA or Field Examination other applicable law notwithstanding the relevant prohibition, violation or termination right, and which is otherwise eligible for inclusion in the calculation of the Borrowing Base (viii) any joinder or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the Administrative Agent extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document. No Canadian Loan Party shall be deemed to have provided a Loan Guaranty in respect of any US Obligation (B) such it being understood that the US Loan Parties shall guarantee the Canadian Obligations). For the avoidance of doubt, it is understood, agreed and intended by the parties hereto that, notwithstanding anything to the contrary herein or in any other due diligence Loan Document, with respect to such assets as US Loan Parties, any US Obligations or any US Secured Obligations (including any Credit Extension, Overadvance or Protective Advance made to the US Borrower), (i) under no circumstance shall the Administrative Agent may require in its Permitted DiscretionAgent, all any Lender or any Participant have recourse to the Capital Stock of any Foreign Subsidiary or any Foreign Subsidiary Holdco, other than 65% of the results issued and outstanding Capital Stock of any Restricted Subsidiary that is a direct, first-tier Restricted Subsidiary of the foregoing US Borrower or a Subsidiary Guarantor of the US Obligations (it being understood with respect to be satisfactory any Credit Extension, Overadvance or Protective Advance made to the Administrative Agent US Borrower, a Subsidiary Guarantor will at no time include a Foreign Subsidiary, a Foreign Subsidiary Holdco or any direct or indirect subsidiary of a Foreign Subsidiary or a Foreign Subsidiary Holdco) and (ii) under no circumstance shall any Foreign Subsidiary or Foreign Subsidiary Holdco or any direct or indirect subsidiary of a Foreign Subsidiary or Foreign Subsidiary Holdco be a Guarantor hereunder or under any Loan Document with respect to the US Obligations or in its Permitted Discretionany other way be required to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee Requirement” with respect to the US Obligations.
Appears in 2 contracts
Samples: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral DocumentLoan Document (including Section 6.12), take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingfollowing actions:
(a) (x) upon within ninety days of the formation or acquisition occurrence of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days Grant Event (or such longer period as the Administrative Agent may agree in its reasonable discretion),
(i) in in cause the case Restricted Subsidiary subject of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required the Grant Event to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver the Guaranty (or a joinder thereto), including by executing a Guaranty Supplement;
(ii) cause the Restricted Subsidiary subject of the Grant Event to execute and deliver the Administrative Agent Security Agreement Supplements(or a supplement thereto), including by executing a Security Agreement Supplement;
(iii) cause the Restricted Subsidiary subject of the Grant Event to execute and deliver any applicable Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)its intellectual property issued by, as reasonably requested by or registered with, or applied for in the United States Patent and Trademark Office, or registered in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date)United States Copyright Office, in each case granting Liens required by to the Collateral and Guarantee Requirementextent constituting Collateral;
(Civ) cause each the Restricted Subsidiary subject of the Grant Event to execute and deliver an acknowledgement of the Closing Date Intercreditor Agreement (or a supplement thereto, including a Security Agreement Supplement);
(v) cause the Restricted Subsidiary subject of the Grant Event (and any Loan Party of which such Material Domestic Restricted Subsidiary that is required a direct Subsidiary) to become a Guarantor pursuant to (A) if such Restricted Subsidiary has “opted into” Article 8 of the Collateral and Guarantee Requirement to Uniform Commercial Code, deliver any and all certificates representing its Equity Interests (to the extent certificated) that constitute Collateral and are required to be pledged delivered pursuant to the Collateral and Guarantee RequirementSecurity Agreement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law), (B) and deliver the Global Intercompany Note (or a joinder thereto), (C) deliver all instruments evidencing the intercompany Indebtedness held by such Material Domestic Restricted Subsidiary that constitute Collateral and are required to be pledged delivered pursuant to the Security Agreement, endorsed in blank, to the Collateral DocumentsAgent and (D) if such Restricted Subsidiary is a Foreign Subsidiary, indorsed deliver such additional security documents and enter into additional collateral arrangements in blank the jurisdiction of such Foreign Subsidiary reasonably satisfactory to the Administrative Agent;
(Dvi) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as upon the reasonable request of the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formationAgent, acquisition or designation, (1) take and cause the applicable Material Domestic Restricted Subsidiary the subject of the Grant Event and each direct or indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement Security Agreement that holds Equity Interests in such Restricted Subsidiary to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) such customary actions as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority perfected Liens (subject to Permitted Liens) in the Intercreditor Agreement) perfected Liens Equity Interests of such Restricted Subsidiary and the personal property and fixtures of such Restricted Subsidiary to the extent required by the Collateral and Guarantee RequirementLoan Documents, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(iivii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as upon request of the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a customary opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative AgentParties; provided, however, that there shall be no obligation to deliver to (A) without limiting the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees obligations set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateabove, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and the Collateral Agent will takeconsult in good faith with the Borrower to reduce any stamp, filing or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party similar taxes imposed as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included actions described in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent foregoing provisions and (B) such other due diligence with respect actions relating to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionLiens on real property are governed by Section 6.11(b) and not this Section 6.11(a).
Appears in 2 contracts
Samples: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Parent Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary by the Parent Borrower or any Subsidiary Guarantor or any Material Swiss Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party), the designation in accordance with Section 8.3, 6.14 of any existing direct or indirect Wholly-Owned wholly owned Unrestricted Subsidiary as a Restricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets wholly owned by the Parent Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Material Swiss Subsidiary (in each case, other than assets constituting Collateral under an Excluded Subsidiary), any Subsidiary becoming a Collateral Document that becomes subject Material Domestic Subsidiary wholly owned by the Parent Borrower or any Subsidiary Guarantor or a Material Swiss Subsidiary (in each case, other than an Excluded Subsidiary) or any Material Domestic Subsidiary wholly owned by the Parent Borrower or any Subsidiary Guarantor or any Material Swiss Subsidiary ceasing to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):be an Excluded Subsidiary:
(i) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation of such Material Domestic Subsidiary or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under pursuant to the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Agent, Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), required hereby or by the Collateral Documents or as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Material Domestic Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) that and intercompany notes or a joinder to an existing intercompany note (to the extent certificated) that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Material Domestic Subsidiary that is a Guarantor) to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be required pursuant to the terms of the Collateral Documents or as necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority and perfected (subject to the Intercreditor Agreementextent required by the Collateral Documents) perfected Liens to the extent required by the Collateral and Guarantee Requirement; and
(ii) within sixty (60) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Swiss Subsidiary that is required to become a Swiss Guarantor pursuant to the Collateral and Guarantee Requirement to become a Swiss Guarantor under the Swiss Guaranty and to duly execute and deliver to the Administrative Agent the applicable Foreign Collateral Documents (or analogous documents) (consistent with the Foreign Collateral Documents in effect on the Effective Date in all material respects with such changes as may be agreed to by the Administrative Agent and the Parent Borrower), in each case granting Liens required by the Collateral and Guarantee RequirementRequirement and, enforceable against all third parties if requested by the Administrative Agent in accordance with their termsits reasonable discretion, except as such enforceability may be limited by Debtor Relief Laws a signed copy of an opinion addressed to the Administrative Agent and by general principles the other Lenders, of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with counsel for the requirements of Section 8.12 with respect Loan Parties reasonably acceptable to all Deposit Accounts; andthe Administrative Agent.
(iib) After the Effective Date, within forty-five ninety (45) days (or within one hundred and eighty (18090) days (or such longer period as the Administrative Agent may agree in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower Parent Borrower, any Subsidiary Guarantor or any Loan Partythe Japanese Subsidiary Borrower, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Parent Borrower shall give notice thereof to the Administrative Agent and will takewill, or cause the relevant Loan PartyParty to, duly execute and deliver a Mortgage with respect to takesuch Material Real Property, including the actions referred to documents listed in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of herein this Section 6.11 shall not apply to any entity that becomes a real property owned by the Swiss Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each caseParties, which were shall not included in the analysis under the most recent Updated Inventory Appraisal be pledged or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionconstitute Collateral.
Appears in 2 contracts
Samples: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xw) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Restricted Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Partythe Borrower or a Subsidiary Guarantor, (x) the designation in accordance with Section 8.3, 6.15 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic (other than an Excluded Subsidiary), (y) upon the acquisition of any material assets by the Borrower or Restricted Subsidiary that is not a Guarantor guaranteeing any Subsidiary Guarantor Specified Junior Financing Obligations or (z) with respect any Restricted Subsidiary (other than an Excluded Subsidiary) that is designated to any Subsidiary be no longer an Immaterial Subsidiary, the Borrower shall, in each case at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five as soon as reasonably practicable and in any case on or prior to thirty (4530) days (or such greater number of days specified below) after such formation, acquisition acquisition, designation or designation or, in each case, Guarantee (or such longer period as either specified in Section 6.12(b) or as the Administrative Agent may agree in its reasonable discretion:):
(A) cause each such Material Domestic Restricted Subsidiary to duly execute and deliver to the Administrative Agent a supplement to the Guaranty, Guaranteeing the Obligations of the Borrower;
(B) cause each such Restricted Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement pursuant to this Section 6.12 to furnish to the Administrative Agent a description of the any Material Real Properties Property owned by such Material Domestic Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(BC) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement this Section 6.12 to duly execute and deliver to the Administrative Agent Agent, other than with respect to Excluded Assets, (i) Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents Collateral Documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyother than Mortgages), as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect (or otherwise agreed) on the Restatement Effective Closing Date), and (ii) Mortgages with respect to Material Real Property and such other instruments or documents as are necessary to satisfy the other conditions of the Mortgage Requirement in accordance with Section 6.12(b), in each case granting Liens required by a Lien in substantially all personal property of such Restricted Subsidiary and all Material Real Property, securing the Collateral and Guarantee RequirementObligations of such Restricted Subsidiary under the Guaranty;
(CD) cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement this Section 6.12 to deliver deliver, other than with respect to Excluded Assets, any and all certificates representing Equity Interests (directly owned by such Restricted Subsidiary or, if applicable in the case of Equity Interests of Foreign Subsidiaries and, to the extent certificatedrequired by the Security Agreement, cause the legal representative(s) that are required of such Restricted Subsidiary to be pledged pursuant to register the Collateral and Guarantee Requirementtransfer of the Equity Interests in the relevant share registers of such Restricted Subsidiary, in each applicable case accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments and, to the extent required by the Security Agreement, instruments, if any, evidencing the intercompany Indebtedness debt held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral DocumentsRestricted Subsidiary, if any, indorsed in blank to the Administrative AgentAgent or accompanied by other appropriate instruments of transfer;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1E) take and cause the applicable Material Domestic such Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever reasonable action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements (or comparable documents or instruments under other applicable Law), and delivery of certificates evidencing stock and membership interest certificates to the extent certificatedinterests) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Documents delivered pursuant to this Section 8.12 with respect to all Deposit Accounts6.12; and
(ii) within forty-five if requested, as soon as reasonably practicable and in any case on or prior to thirty (4530) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinioncustomary legal opinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties (or, where customary in the applicable jurisdiction, the Administrative Agent) reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.12(a) as the Administrative Agent may reasonably request; and,
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after Upon the acquisition of any Material Real Property by the Borrower or any Loan PartySubsidiary Guarantor, and or if otherwise required by Section 6.12(a)(i), if such Material Real Property shall not already be subject to a perfected Lien pursuant to in favor of the Collateral and Guarantee RequirementAdministrative Agent for the benefit of the Secured Parties, the Borrower shall give notice thereof or Subsidiary Guarantor, as the case may be, cause such Material Real Property (other than Excluded Assets) to be subjected to a Lien securing the Administrative Agent Secured Obligations and will take, or cause the relevant Loan Party, Borrower and Subsidiary Guarantor to take, such actions as shall be necessary or reasonably requested by the actions referred Administrative Agent to grant and perfect or record such Lien in Section 8.13(baccordance with the Mortgage Requirement and to satisfy the other conditions of the Mortgage Requirement within ninety (90) days of the requirement becoming applicable (or such longer period as the Administrative Agent may agree in its reasonable discretion).
(c) Notwithstanding anything Concurrently with the delivery of each Compliance Certificate pursuant to the contrary contained herein, no assets (xSection 6.02(b) in respect of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (yfinancial statements delivered pursuant to Section 6.01(a) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination execute and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all Patents (as defined in the Security Agreement) and Trademarks (Bas defined in the Security Agreement) registered or pending with the United States Patent and Trademark Office and registered or pending Copyrights (as defined in the Security Agreement) with the United States Copyright Office constituting After Acquired Intellectual Property (as defined in the Security Agreement) that is Material Intellectual Property owned by it or any Guarantor as of the last day of the period for which such other due diligence Compliance Certificate is delivered, to the extent that such After Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it or such Guarantor. In each case, the Borrower will, and will cause each Subsidiary Guarantor to, promptly cooperate as necessary to enable the Administrative Agent to make any necessary recordations with the US Copyright Office or the US Patent and Trademark Office, as appropriate, with respect to such assets as Material Intellectual Property.
(d) Notwithstanding the foregoing provisions of this Section 6.12 and the provisions of any Loan Document, (i) the Administrative Agent may require shall not take, and the Borrower and Subsidiary Guarantors shall not be required to grant, a security interest in any Excluded Assets, (ii) the Administrative Agent shall not take a security interest in any assets, including without limitation, Material Real Property, as to which the Administrative Agent shall determine in writing, in its Permitted Discretionreasonable discretion, all that the cost, burden or consequences of obtaining such Lien (including any mortgage, stamp, intangibles or other similar Tax, title insurance or similar items) is excessive in relation to the benefit to the Secured Parties of the results of the foregoing security afforded thereby, (iii) Liens required to be satisfactory granted pursuant to this Section 6.12, and actions required to be taken, including to perfect such Liens, shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date, (iv) the Borrower and the Subsidiary Guarantors shall not be required to take any actions outside the United States to perfect any Liens in the Collateral, and (v) the Restricted Subsidiaries will not be required to provide any Guaranty or grant a security interest in their property, to the extent any material and adverse tax consequence would reasonably be expected to result from the provision of such Guaranty or the grant of such security interest.
(e) The Borrower agrees to notify the Administrative Agent in its Permitted Discretionwriting promptly, but in any event within 30 days, after any change in (i) the legal name of any Grantor (as defined in the Security Agreement), (ii) the identity or type of organization or corporate structure of such Grantor or (iii) the jurisdiction of organization of such Grantor.
Appears in 2 contracts
Samples: Credit Agreement (Dunkin' Brands Group, Inc.), Credit Agreement (Dunkin' Brands Group, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary) becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiaryof the Borrower, (y) upon the acquisition of any material assets by any Loan Party that are the Borrower or any Subsidiary Guarantor subject of the Collateral and Guarantee Requirement or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary Collateral and Guarantee Requirement (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(ia) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Guaranty (or a joinder thereto) and other documentation the Administrative Agent a description may reasonably request from time to time in order to carry out more effectively the purposes of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to Guaranty and the Administrative Agent;Collateral Documents,
(BA) within forty-five sixty (4560) days (or within one hundred and eighty fifty (180150) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, Mortgages and the other items listed in Section 6.11(2)(b), mutatis mutandis, with respect to any Material Real Property, supplements to the Security Agreement SupplementsAgreement, a counterpart signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyif applicable), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective DateClosing Date as amended and in effect from time to time), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(CB) within sixty (60) days after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing and, if applicable, a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(DC) within forty-five sixty (4560) days (or within one hundred and eighty fifty (180150) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of (i) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (ii) to the extent applicable, each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take whatever action customary action(s) (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and perfected (subject to the Intercreditor AgreementLiens permitted by Section 7.01) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iiD) within forty-five sixty (4560) days (or within one hundred and eighty fifty (180150) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified described in Section 8.13(b6.11(2)(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary Opinion of Counsel, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(1) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey actions relating to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent canLiens on real property are governed by Section 6.11(2) and not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in this Section 8.13(b6.11(1).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary of Holdings (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of or any existing direct or indirect Wholly-Owned Subsidiary that was formerly an Excluded Subsidiary becoming a Subsidiary that is a Material Domestic not an Excluded Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary(including in connection with the 2019 Corporate Restructuring Transactions), (y) upon then the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary Borrowers shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrowers’ expense:
(i) within forty-five thirty (4530) days (or such greater number of days specified below) after such formationformation or acquisition, acquisition or designation orcause such Subsidiary, in each casealong with all of its Subsidiaries that are not Excluded Subsidiaries, such longer period as to duly execute and deliver to the Administrative Agent may agree a guaranty or guaranty supplement in its reasonable discretion:the form of Exhibit F-1, guaranteeing the other Loan Parties’ obligations under the Loan Documents; provided that if any such Subsidiary is a direct Subsidiary of Holdings (other than an Excluded Subsidiary), such Subsidiary shall become a Borrower under this Agreement pursuant to an assumption agreement reasonably acceptable to the Administrative Agent,
(Aii) cause each within thirty (30) days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to formation or acquisition, furnish to the Administrative Agent a description of the Material Real Properties owned by real and personal properties of each such Material Domestic Subsidiary Subsidiary, in detail reasonably satisfactory to the Administrative Agent;reasonable detail,
(Biii) within forty-five thirty (4530) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition formation or designationacquisition, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to (x) duly execute and deliver to the Administrative Agent Agent, Security Agreement Supplements, Intellectual Property IP Security Agreements Agreement Supplements (only with respect to any U.S. registrations and applications for registration of IP Rights included in the Collateral and excluding any “intent to use” trademark or service xxxx applications) (including delivery of all Pledged Interests in and of each such Subsidiary, and other security and pledge agreements and documents (including, the documents listed in Section 8.13(b) but not with respect to Mortgages of any Material Real PropertyExcluded Assets (as defined in the Security Agreement), as reasonably requested by and in form and substance reasonably satisfactory to securing payment of all the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause Obligations of each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to under the Collateral Loan Documents and Guarantee Requirement to deliver any constituting Liens on all such real and all certificates representing Equity Interests personal properties and (to the extent certificatedy) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery the giving of stock and membership interest certificates to the extent certificatednotices) may be necessary or advisable in the reasonable opinion of of, and requested by, the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral Security Agreement Supplements, IP Security Agreement Supplements and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiiv) within forty-five sixty (4560) days (after such formation or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and,
(iiiv) within ninety (90) days after such formation or acquisition, cause each such Subsidiary to (x) if any such Person owns any Material Properties, duly execute and deliver deeds of trust, trust deeds, deeds to secure debt, and mortgages, and (y) take whatever action (including the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of, and requested by, the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, IP Security Agreement Supplements and security and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms,
(vi) as promptly as practicable after such formation or acquisition, deliver, upon the reasonable request therefor by of the Administrative AgentAgent in its reasonable discretion, deliver to the Administrative Agent with respect to each Material Real Property, Property owned by the entity that is the subject of such formation or acquisition title reports, surveys and engineering, soils and other reports, and environmental assessment reports reports, each in scope, form and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date substance reasonably satisfactory to the Administrative Agent; , provided, however, that there to the extent that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such Material Property, such items shall, promptly after the receipt thereof, be no obligation to deliver delivered to the Administrative Agent any environmental assessment report whose disclosure to Agent. Notwithstanding the foregoing, the Administrative Agent would require and the consent Lenders hereby agree that, at the Lead Borrower’s election, the foregoing requirements may be satisfied with respect to Novanta Medical Technologies Corp.. Laser Quantum Inc. and/or W.O.M. World of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A Medicine USA Inc. on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and Third Restatement Date.
(iib) after the Restatement Effective Date, promptly after Upon the acquisition of any Material Real Property by the Borrower or any Loan Party, and if such Material Real Property property, in the judgment of the Administrative Agent, shall not already be subject to a perfected Lien pursuant first priority security interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the Borrowers shall, at the Borrowers’ expense:
(i) within thirty (30) days after such acquisition, furnish to the Collateral and Guarantee RequirementAdministrative Agent a description of the property so acquired in detail reasonably satisfactory to the Administrative Agent,
(ii) within ninety (90) days after such acquisition, cause the applicable Loan Party to take whatever action (including the recording of mortgages, the Borrower shall give notice thereof filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties,
(iii) within ninety (90) days after such acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and will takethe other Secured Parties, or of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request,
(iv) within ninety (90) days after such acquisition, cause the relevant applicable Loan PartyParty to duly execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to takesecure debt, and mortgages in form and substance reasonably satisfactory to the actions referred Administrative Agent, securing payment of all the Obligations of the applicable Loan Party under the Loan Documents and constituting Liens on all such properties, and
(v) as promptly as practicable after such acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in Section 8.13(b)its sole discretion, such real property title reports, environmental assessment reports, surveys, appraisals, flood zone certificates, evidence of compliance with zoning requirements and other reports and documents, each in scope, form and substance reasonably satisfactory to the Administrative Agent, provided, however, that to the extent that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory Promptly after delivering supplements to the Administrative Agent and (B) such other due diligence with respect delivered pursuant to such assets as Section 6.02(h), where applicable, deliver deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, or IP Security Agreement Supplements executed by the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionapplicable Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Novanta Inc), Credit Agreement (Novanta Inc)
Covenant to Guarantee Obligations and Give Security. At (a) If as of the last day of any Measurement Period any Person becomes a Material Subsidiary, whether upon formation or acquisition or growth during such Measurement Period or the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition re-designation of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a the Borrower’s designation as referred to in the definition of “Material Domestic Subsidiary”, (y) upon the acquisition of any material assets by the Borrower will deliver, or any Subsidiary Guarantor or (z) with respect cause to any Subsidiary at the time it becomes a Loan Partybe delivered to, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) , as soon as practicable but in any event within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period as may be approved by the Administrative Agent may agree in its reasonable discretion) in in after the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary date that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver Borrower delivers the financial statements to the Administrative Agent Security Agreement Supplementspursuant to Section 6.01(a) or (b) for such Measurement Period, Intellectual Property Security Agreements and other security agreements and the following documents (includingcollectively, the documents listed in Section 8.13(b“Subsidiary Guarantor Deliverables”):
(i) a Security Joinder Agreement duly executed by such Subsidiary (with respect to Mortgages of any Material Real Propertyall schedules thereto appropriately completed), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Cii) cause each such Material Domestic Subsidiary that is required to become (A) a Guarantor pursuant Security Joinder Agreement or supplement to the Collateral Security Agreement schedules, as appropriate, duly executed by each Loan Party that owns any Equity Interest in such Subsidiary (with all schedules thereto appropriately completed), and Guarantee Requirement to deliver any and all certificates representing Equity Interests (B) to the extent certificatedany of such Equity Interests constitutes a security under Article 8 of the Uniform Commercial Code, (x) that are required to be pledged pursuant to the Collateral certificates representing such Equity Interests and Guarantee Requirement(y) duly executed, accompanied by undated stock powers or other appropriate instruments powers of transfer executed assignment in blank affixed thereto;
(iii) Uniform Commercial Code financing statement naming such Subsidiary as “Debtor” and naming the Administrative Agent as “Secured Party”, to be filed in the applicable Uniform Commercial Code filing office necessary to perfect in favor of the Administrative Agent the Liens on the Collateral conferred under the Collateral Documents to the extent such Liens may be perfected by Uniform Commercial Code filings;
(iv) current copies of the Organization Documents of such Subsidiary and resolutions of the board of directors, or equivalent governing body, of such Subsidiary, together with such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (or the local equivalent) of such Subsidiary, the authorization of the transactions contemplated by the Loan Documents and any other legal matters relating to such Subsidiary, the Loan Documents or the transactions contemplated thereby;
(v) if requested by the Administrative Agent, opinions of counsel to the applicable Loan Parties and such Subsidiary with respect to the documents delivered and the transactions contemplated by this Section 6.12 substantially similar in form and substance to the opinion(s) of counsel delivered on the Closing Date pursuant to Section 4.01(a); and
(vi) such documentation and other information requested by the Administrative Agent or any Lender in order to comply with requirements of the Act, applicable “know your customer” and anti-money laundering rules and regulations. provided, the foregoing shall not be required in connection with any Excluded Property.
(b) [reserved]
(c) Each of the Loan Parties shall not open, maintain or otherwise have any deposit or other accounts (including securities accounts) at any bank or other financial institution, or any other documents customary under local lawaccount where money or securities are or may be deposited or maintained with any Person, other than (i) the accounts set forth on Schedule 6.12 and instruments evidencing other accounts from time to time; provided that the intercompany Indebtedness daily balance in any such account does not exceed $1,000,000 and the aggregate daily balance in all such accounts does not exceed $5,000,000, (ii) deposit accounts that are maintained at all times with depositary institutions as to which the Administrative Agent shall have received a Qualifying Control Agreement, (iii) deposit accounts that are held by at Bank of America or any other Lender, as to which no Qualifying Control Agreement will be required, (iv) securities accounts that are maintained at all times with financial institutions as to which the Administrative Agent shall have received a Qualifying Control Agreement, (v) deposit accounts established solely as payroll accounts, employee wage and benefit accounts, tax withholding accounts, escrow accounts, or fiduciary or trust accounts, and (vi) zero balance accounts (all such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed accounts described in blank to (c)(i) though (vi) being “Excluded Accounts”).
(d) At any time upon request of the Administrative Agent;
(D) within forty-five (45) days (or within one hundred , promptly execute and eighty (180) days (or deliver any and all further instruments and documents and take all such longer period other action as the Administrative Agent may agree deem reasonably necessary or desirable in its reasonable discretionobtaining the full benefits of, or (as applicable) in perfecting and preserving the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consentof, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateguaranties, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartySecurity Joinder Agreements, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral other security and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)pledge agreements.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A; and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (JOANN Inc.), Credit Agreement (Jo-Ann Stores Holdings Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:including (in each case, as applicable, subject to the Excluded Subsidiary Joinder Exception):
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than (a) any Excluded Subsidiary and (b) any Subsidiary that will be (and, unless the Administrative Agent shall otherwise agree in its sole discretion, within 90 days following its creation or acquisition, is) converted into an Unrestricted Subsidiary or an Excluded SubsidiaryAffiliated Practice) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary) becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic SubsidiarySubsidiary of the Borrower, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor (other than Excluded Assets) or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets (other than Excluded Assets) held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes become subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) ): within forty-five (45) 60 days (or such greater number of days specified belowlater date as the Collateral Agent may agree) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:event giving rise to the obligation under this Section 6.11(1):
(Aa) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days Guaranty (or within one hundred a joinder thereto) and eighty (180) days (or such longer period as other documentation the Administrative Agent may agree reasonably request from time to time in its reasonable discretionorder to carry out more effectively the purposes of the Guaranty and the Collateral Documents and
(b) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent any supplements to the Security Agreement SupplementsAgreement, a counterpart signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyif applicable), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective DateDate as amended and in effect from time to time), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(Cc) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing and, if applicable, a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1d) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of (I) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (II) to the extent applicable, each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take whatever action customary action(s) (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and perfected (subject to the Liens permitted by Section 7.01 and to any applicable Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iie) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as following the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opiniona customary Opinion of Counsel, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(1) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (LifeStance Health Group, Inc.), Credit Agreement (LifeStance Health Group, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A (or such later date as the Administrative Agent may agree in its reasonable discretion); and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted ceasing to be an Immaterial Subsidiary or (iii) any Subsidiary becoming a Wholly-Owned that was an Excluded Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (yon or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) upon for the acquisition of any material assets by Fiscal Quarter in which the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such relevant formation, acquisition acquisition, designation or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days cessation occurred (or such longer period as the Administrative Agent may agree reasonably agree), the Borrower shall (A) cause such Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in its reasonable discretionclause (a) in in of the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Subsidiary (other than any Excluded Subsidiary) to duly execute and deliver to the Administrative Agent Security Agreement Supplementsa signed copy of a customary opinion of counsel for such Subsidiary, Intellectual Property Security Agreements addressed to the Administrative Agent and the other security agreements and documents relevant Secured Parties.
(including, b) Within 90 days after the documents listed in Section 8.13(b) with respect to Mortgages acquisition by any Loan Party of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and Estate Asset other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver than any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days Excluded Asset (or such longer period as the Administrative Agent may agree reasonably agree), the Borrower shall cause such Loan Party to comply with the requirements set forth in its reasonable discretionclause (b) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect to any Material Domestic Real Estate Asset owned by any Subsidiary that at the time such Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of MortgagesLoan Party under Section 5.12(a) above, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Subsidiary on the first day of the time period within which such Subsidiary is required to become a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.12(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, no assets it is understood and agreed that:
(xi) the Administrative Agent may grant extensions of time (including after the expiration of any entity relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Subsidiary (in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time;
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents;
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements (other than, in each case to the extent the same otherwise constitute Collateral, control of pledged Capital Stock, Material Debt Instruments, and deposit accounts of the Loan Parties that becomes a are concentration accounts);
(iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, other than, subject to the terms of the last paragraph of Section 4.01, as expressly set forth on Schedule 5.15;
(v) no Loan Party will be required to (A) take any action outside of the U.S. in order to create or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule, in each case other than with respect to a Foreign Subsidiary designated as a result Subsidiary Guarantor pursuant to the last sentence of the definition of “Subsidiary Guarantor”;
(vi) in no event will the Collateral include any Excluded Asset;
(vii) no action shall be required to perfect any Lien with respect to (1) any vehicle or other asset subject to a certificate of title, (2) Letter-of-Credit Rights, (3) the Capital Stock of any Immaterial Subsidiary and/or (4) the Capital Stock of any Person that is not a subsidiary, which Person, if a subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein can be perfected by filing a Form UCC-1 (or similar) financing statement under the UCC;
(viii) no action shall be required to perfect a Lien in any asset in respect of which the perfection of a Permitted Acquisition security interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (yother than in the case of capital leases, purchase money and similar financings), (2) acquired from a third party violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited by a Loan Party outside the ordinary course terms of businessthis Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of capital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti- assignment provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision, it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination other applicable Requirements of Law notwithstanding the relevant prohibition, violation or termination right;
(A) no Loan Party shall be required to perfect a security interest in any asset to the extent the perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until (B) the Administrative Agent has completed and the Secured Parties shall not enforce any security interest (including foreclosure, taking possession, storage, sale, distribution or received, in any case at the expense of the Borrower (without regard tootherwise), or counting against, right or remedy with respect to any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals Collateral that may be conducted during limited or restricted by any periodRequirement of Law in violation of such Requirement of Law, or requires any consent, authorization approval or license under any Requirement of Law that has not been obtained;
(x) any joinder or supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Subsidiary that is required to become a Loan Party pursuant to Section 5.12(a) above (including any Joinder Agreement) may, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as contained may be necessary to qualify any representation or warranty set forth in Section 7.4any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document;
(xi) (A) Inventory appraisals and Field Examinations, as may no Loan Party shall be reasonably required by to take any action required under the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent Federal Assignment of Claims Act and (B) such no Secured Party will be permitted to exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables;
(xii) for the avoidance of doubt, in no event shall any person that is not a subsidiary or that constitutes an Excluded Subsidiary be required to provide a Guaranty of any Secured Obligation or comply with any other due diligence with respect requirement of this Section 5.12;
(xiii) no Loan Party shall be required to such assets as provide any leasehold Mortgages; and
(xiv) the Administrative Agent may shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other Tax or expenses relating to such Lien) is excessive in its Permitted Discretion, all relation to the benefit to the Lenders of the results of security afforded thereby as reasonably determined in writing by the foregoing to be satisfactory to Borrower and the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) Subject to the Agreed Security Principles, upon the formation or acquisition by any Loan Party of any new direct or indirect Subsidiary (other than any Excluded Subsidiary), or upon a Subsidiary ceasing to be an Excluded Subsidiary, the Parent Guarantor and the Borrower shall, at the Borrower’s expense:
(i) Within sixty (60) days (as such time may be extended by the Administrative Agent in its reasonable discretion) following the creation or acquisition of such Subsidiary or following such Subsidiary ceasing to be an Excluded Subsidiary, subject cause such Subsidiary to (a) become a Guarantor and provide the Administrative Agent, for the benefit of the Secured Parties, a Lien on its assets to secure the Obligations by executing and delivering to the provisions of Administrative Agent a joinder to the applicable Collateral Agreement, the Guarantee Agreement and/or such other documents as the Administrative Agent shall deem appropriate for such purpose and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or (b) deliver to the Administrative Agent such other customary documentation reasonably requested by the Administrative Agent including opinions of counsel to ensure that such Person (which shall cover, among other things, the Collateral legality, validity, binding effect and Guarantee Requirement continues enforceability of the documentation referred to be satisfiedin clause (a)), including:all in form, content and scope reasonably satisfactory to the Administrative Agent;
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(iii) within forty-five sixty (4560) days (or as such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as time may be extended by the Administrative Agent may agree in its reasonable discretion:
(A) cause each after such Material Domestic formation or acquisition or after such Subsidiary that ceases to be an Excluded Subsidiary, if requested in writing by the Administrative Agent or if the Administrative Agent is required directed in writing by the Required Lenders to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to request, furnish to the Administrative Agent a description of the Material Real Properties owned by real property of such Material Domestic Subsidiary Subsidiary, in detail reasonably satisfactory to the Administrative Agent;
(Biii) within forty-five sixty (4560) days (or within one hundred and eighty (180) days (or as such longer period as time may be extended by the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, formation or acquisition or designationafter such Subsidiary ceases to be an Excluded Subsidiary, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant direct and indirect parent (to the Collateral extent such parent is a Loan Party) of such Subsidiary to pledge its interests in such Subsidiary to the Administrative Agent, for the benefit of the Secured Parties, to secure such parent’s Obligations (if it has not already done so) and Guarantee Requirement to deliver to the Administrative Agent all certificated Equity Interests of such Subsidiary (if any) together with transfer powers in respect thereof endorsed in blank, and cause such Subsidiary:
(A) to duly execute and deliver to the Administrative Agent Security Agreement SupplementsAgent, Intellectual Property Security Agreements for the benefit of the Secured Parties, any additional collateral and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)or supplements thereto, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with Agent, to secure payment of all the MortgagesObligations of such Subsidiary, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect constituting Liens on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;personal property (other than Excluded Assets) of such Subsidiary; and
(CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting first priority (perfected Liens on properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral Documents and Guarantee Requirementother agreements delivered pursuant to this Section 5.11, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect subject to all Deposit AccountsPermitted Prior Liens; and
(iiiv) within forty-five sixty (4560) days (or within one hundred and eighty (180) days (or as such longer period as time may be extended by the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (such formation or acquisition or after such longer period as the Administrative Agent may agree in its reasonable discretion)Subsidiary ceases to be an Excluded Subsidiary, deliver to the Administrative Agent Agent, upon the request of the Administrative Agent, a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties as to such matters as the Administrative Agent may reasonably request. Notwithstanding any of the foregoing to the contrary, the Collateral shall be subject to the limitations and exclusions set forth in the applicable Collateral Documents and it is understood and agreed that:
(i) no Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(ii) no action shall be required to perfect any Lien with respect to (A) any vehicle or other asset subject to a certificate of title, (B) letter of credit rights, (C) the capital stock or other Equity Interests of any Immaterial Subsidiary or (D) the capital stock or other Equity Interests of any Person that is not a Subsidiary which, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case, except to the extent that a security interest therein is perfected by filing a UCC financing statement (or equivalent) (which shall be the only required perfection action);
(iii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Law;
(iv) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any Tax or expenses relating to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent;
(v) no actions shall be required with respect to assets requiring perfection through control agreements or perfection by “control” (other than in respect of Indebtedness for borrowed money owing to the Loan Parties evidenced by a note in excess of $2,500,000 and certificated Equity Interests of the Borrower and of wholly-owned Restricted Subsidiaries that are Material Subsidiaries otherwise required to be pledged pursuant to the Collateral Agreements);
(vi) the Loan Parties shall not have any obligation to perfect any security interest or Lien, or record any notice thereof, in any IP Rights included in the Collateral in any Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM jurisdiction other than (x) the United States of America and (y) the jurisdiction of incorporation, association, organization, formation or registration of an applicable Loan Party, in each case, subject to the Agreed Security Principles; and
(vii) the creation and perfection of any security interest by Foreign Subsidiaries shall be subject to the Agreed Security Principles.
(b) With respect to any Material Real Estate Assets owned by a Loan Party on the Funding Date or acquired by a Loan Party thereafter, and all Material Real Estate Assets owned by any Subsidiary that becomes a Loan Party pursuant to Section 5.11(a) above, within ninety (90) days (as such time may be extended by the Administrative Agent in its reasonable discretion) (and, in the case of clause (vii) below, within the time period set forth therein) after (i) the Funding Date, in the case of Material Real Estate Assets owned by the Loan Parties on the Funding Date and (ii) the date such Material Real Estate Assets is acquired (or such Subsidiary is formed or acquired or ceases to be an Excluded Subsidiary, as the case may be) in such other cases, the Parent Guarantor and the Borrower shall, or shall cause the applicable Loan Party to, at its expense, provide to the Administrative Agent, or, with respect to clause (vii), as applicable, acknowledge receipt of, as applicable (in each case, subject to the Agreed Security Principles):
(i) deeds of trust, trust deeds, deeds to secure debt or mortgages made by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties (collectively, with each other mortgage or similar document delivered pursuant to this Section 5.11, the “Mortgages”), each in form and substance reasonably satisfactory to the Administrative Agent and covering the Material Real Estate Assets then owned by the applicable Loan Party, together with any other Material Real Estate Asset acquired by any Loan Party, in each case duly executed by the appropriate Loan Party;
(ii) a description of the owned property so acquired in detail reasonably satisfactory to the Administrative Agent;
(iii) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein subject to Permitted Prior Liens in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(iv) 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 acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, subject only to Permitted Prior Liens;
(v) American Land Title Association/National Society of Professional Surveyors surveys of any Material Real Estate Assets that are reasonably acceptable to Administrative Agent and are of a form, scope and substance sufficient to cause all standard survey exceptions from the corresponding Mortgage Policy to be removed and the survey related endorsements issued, for which all necessary fees (where applicable) have been paid and, in each Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM case, certified to the Administrative Agent, the applicable Loan Party, and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such matters set forth surveys is located, or in lieu thereof, an existing survey, together with a no change affidavit sufficient for the title insurance company to remove the standard survey exception from the applicable Mortgaged Policy and issue the survey related endorsements to the applicable Mortgage Policy;
(vi) without limiting clause (vii) below, evidence of the insurance required by the terms of the Mortgages;
(vii) at least forty (40) days (as such time period may be reduced by the Administrative Agent in its reasonable discretion) prior to the end of the ninety (90) day period referred to in the lead in to this Section 8.11(aclause (b), the following documents: (A) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination form (a “Flood Determination Form”), (B) if any improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification thereof to the Borrower from Administrative Agent (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the applicable real property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been provided as a separate policy or within the property insurance program for the applicable real property, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”); and
(viii) such customary legal opinions and other customary documents (including a certificate from the Borrower certifying that all conditions and requirements in clause (vii) above have been satisfied) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory Mortgage or Mortgaged Property.
(1) a Borrower Notice and (if applicable) notification to the Administrative Agent Borrower that flood insurance coverage under the NFIP is not available because the community does not participate in its Permitted Discretionthe NFIP and (2) documentation evidencing the Borrower’s receipt of Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery) and (z) if flood insurance is required by Flood Laws, Evidence of Flood Insurance.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) including (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct Party or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or upon any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (other than an Excluded Subsidiary), (y) upon any Excluded Subsidiary ceasing to be an Excluded Subsidiary, or upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each casecase under the foregoing clauses (y) or (z), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(ia) within forty-five (45) days (or such greater number of days specified belowlonger period as the Collateral Agent may agree in its sole discretion) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(Ai) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to a joinder or amendment to the Guaranty in form and substance reasonably satisfactory to the Administrative Agent;
(ii) cause each such Material Domestic Subsidiary Guarantor under the Collateral and Guarantee Requirement to promptly furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(Biii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents in effect on the Restatement Effective Date), in each case case, granting Liens required by the Collateral and Guarantee Requirement; provided none of the Borrower or any of its Subsidiaries shall not be required to enter into any security agreements governed by foreign law;
(Civ) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged 62 pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest cause the Liens or security interests created by the Collateral Documents in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) be duly perfected Liens as required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 8.11 with respect to all Deposit Accounts; and;
(iivi) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinionopinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a8.10(a) as the Administrative Agent may reasonably request; and;
(b) in the case of any Material Real Property, provide the Collateral Agent with (x) prompt notice thereof and (y) Mortgages with respect to such owned real property in form and substance reasonably satisfactory to the Collateral Agent (consistent with the Mortgages in effect on the date thereof) within ninety (90) days (or such longer period as the Collateral Agent may agree in its sole discretion) of the acquisition of, or, if requested by the Collateral Agent, entry into, or renewal of, a ground lease in respect of, such real property in each case together with:
(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording Taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements available in the applicable jurisdiction and in amount, reasonably acceptable to the Collateral Agent (not to exceed the value of the real properties covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, subject only to Liens permitted by Section 9.1, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably request and is available in the applicable jurisdiction;
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Boardreports, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained;
(iv) opinions of local counsel for the Loan Parties in states in which the real properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(v) such other evidence that all other actions that the Administrative Agent or Collateral Agent may reasonably deem necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages has been taken; and
(i) at any time any books and records of the Borrower shall obtain and its Subsidiaries are located on any real property of a Loan Party (whether such real property is now existing or acquired after the security interests and Guarantees set forth Effective Date) which is not owned by a Loan Party, or is stored on Schedule 1.1A on the premises of a bailee, warehouseman, or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; similar party, and (ii) after if the Restatement Effective Date, promptly after the acquisition of any Material Real Property Borrower’s headquarter is not owned by the Borrower or any Loan Party, and such Material Real Property shall not already be subject use commercially reasonable efforts to a perfected Lien pursuant to obtain written landlord waivers or collateral access agreements, as the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businesscase may be, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination form and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably substance satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Samples: Credit Agreement (eHealth, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
: (a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct Party or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or upon any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (other than an Excluded Subsidiary), (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each casecase under the foregoing clauses (y) or (z), other than assets constituting Collateral under a 5339129.14 89 Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
): (i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
: (A) cause each such Material Domestic Subsidiary that is required to become a Borrower (if it has assets to be included in the Borrowing Base) or a Guarantor (if it does not have assets to be included in the Borrowing Base) pursuant to a joinder or amendment in form and substance reasonably satisfactory to the Administrative Agent; (B) cause each such Material Domestic Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
; (BC) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b8.12(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property8.12(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any security agreements governed by foreign law; (CD) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
; (DE) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b8.12(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 8.11 with respect to all Deposit Accounts; andand 0000000.14 90
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b8.12(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinionopinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a8.10(a) as the Administrative Agent may reasonably request; and
and (iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Boardreports, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iib) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b8.12(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.. SECTION
Appears in 1 contract
Samples: Credit Agreement (eHealth, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the Third Amendment Effective Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary), (ii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or (other than an Excluded Subsidiary), (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary (other than an Excluded Subsidiary), (yiv) upon the acquisition of any material assets by the Borrower or any Restricted Subsidiary Guarantor that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary or (zv) with respect to any Subsidiary at the time it becomes designation of a Loan PartyDiscretionary Guarantor, for any material assets held by such Subsidiary on or before the date that is sixty (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (4560) days (or after the end of such greater number of days specified below) after Fiscal Quarter in which such formation, acquisition transaction or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Borrower shall (A) in cause such Restricted Subsidiary or Discretionary Guarantor to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevant Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required Discretionary Guarantor to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary or Discretionary Guarantor, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardThird Amendment Effective Date) where it reasonably determines, provided that in 129590608_2#96809902v9 consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverBorrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) accomplished without undue effort or expense by the Borrower shall obtain time or times at which it would otherwise be required to be accomplished by this Agreement or the security interests Collateral Documents, and Guarantees set forth on Schedule 1.1A on or prior each Lender hereby consents to the dates corresponding to any such security interests and Guarantees set forth on Schedule 1.1A; and extension of time, (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents, (iii) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, (iv) no Loan Party will take, or cause the relevant Loan Party, be required to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything take any action to the contrary contained hereinextent limited, restricted or not required by the Collateral and Guarantee Requirement and any other Loan Document, (v) in no assets event will the Collateral include any Excluded Assets, (xvi) no action shall be required to perfect a Lien in any asset in respect of which the perfection of a security interest therein would (1) violate the terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the Third Amendment Effective Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesscapital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law or (2) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the Third Amendment Effective Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination and which is otherwise eligible for inclusion in other applicable law notwithstanding the calculation of the Borrowing Base relevant prohibition, violation or the Term Borrowing Base, may be included in the calculation of the Borrowing Base termination right; (vii) any joinder or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the Administrative Agent extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document; and (Bviii) such other due diligence any time periods to comply with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing Section 5.12(a) shall not apply to Discretionary Guarantors (provided that such entity shall not be satisfactory to the Administrative Agent in its Permitted Discretiondeemed a Guarantor or Discretionary Guarantor until such entity has complied with such requirements).
Appears in 1 contract
Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) [Reserved.]
(xb) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation Party (provided that each of (i) any Subsidiary Redesignation resulting in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned an Unrestricted Subsidiary that is a Material Domestic Subsidiary as becoming a Restricted Subsidiary and (ii) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Restricted Subsidiary shall be deemed to constitute the acquisition of a Restricted Subsidiary for all purposes of this Section 6.12), or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by personal property (other than “Excluded Property,” as defined in the Borrower Security Agreement) or any Subsidiary Guarantor Material Real Property (other than any Excluded Real Property) by any Loan Party (or Material Real Property (zother than Excluded Real Property) with respect to owned by any Subsidiary at the time it that becomes a Loan PartyParty pursuant to this Section 6.12(b)), which real or personal property, in the reasonable judgment of the Administrative Agent, is not already subject to a perfected Lien in favor of the Collateral Agent for any material assets held by such Subsidiary (the benefit of the Secured Parties, then the Borrower shall, in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to case at the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) in connection with the formation or acquisition of a Restricted Subsidiary, within forty-five (45) days (or such greater number of days specified below) after such formation, formation or acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable sole discretion, (A) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement not an Excluded Subsidiary, to duly execute and deliver to the Administrative Agent and the Collateral Agent (1) a Guaranty or Guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, Guaranteeing the other Loan Parties’ obligations under the Loan Documents and (2) supplements to the Security Agreement Supplements(and, if applicable, supplements to the other Collateral Documents) with respect to the pledge of any Equity Interests or Indebtedness and any additional assets of such Restricted Subsidiary in accordance with the Security Agreement, Intellectual Property Security Agreements Agreement and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)Collateral Documents, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and the other Collateral Documents in effect on the Restatement Effective DateDocuments), in each securing payment of all the First Lien Obligations of the applicable Loan Party or such Subsidiary, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such properties, and Guarantee Requirement;
(CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to (if not already so delivered) deliver any and all certificates representing the Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, of such Restricted Subsidiary accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by Pledged Debt of such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided, that only 65% of the voting Equity Interests of any Foreign Subsidiary (or any CFC Holdco) shall be required to be pledged as Collateral and no such restriction shall apply to non-voting Equity Interests of such Subsidiaries; provided, further, that, (x) notwithstanding anything to the contrary in this Agreement, no assets of any Foreign Subsidiary (including Equity Interests owned by such Foreign Subsidiary in a Domestic Subsidiary) shall be required to be pledged as Collateral and (y) no Loan Party will transfer or permit a transfer of a Domestic Subsidiary to a Foreign Subsidiary;
(Dii) within forty-five thirty (4530) days (after such formation or within one hundred and eighty (180) days (acquisition, or such longer period as the Administrative Agent may agree in its reasonable sole discretion, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal properties of the Loan Parties and their respective Subsidiaries (other than Excluded Subsidiaries) in detail reasonably satisfactory to the case of Administrative Agent and the Collateral Agent;
(iii) within ninety (90) days after such formation or acquisition, or such longer period as the Administrative Agent may agree in its sole discretion, duly execute and deliver, and cause each such Subsidiary that is not an Excluded Subsidiary to duly execute and deliver, to the Administrative Agent and the Collateral Agent Mortgages (with respect to Material Real Properties that are not Excluded Real Properties) and related other agreements, documents and instruments specified in Section 8.13(b4.01(g) and 6.14(b) in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Security Agreement and Mortgages), securing payment of all the First Lien Obligations of the applicable Loan Party or such Subsidiary, as the case may be, under the Loan Documents and constituting Liens on all such properties;
(iv) within forty-five (45) days (or ninety (90) days if such requirements relate to Mortgages) after such formationformation or acquisition, acquisition or designationsuch longer period as the Administrative Agent may agree in its sole discretion, (1) take take, and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required not an Excluded Subsidiary to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever additional action (including including, without limitation, the recording of MortgagesMortgages (with respect to Material Real Properties that are not Excluded Real Properties), the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and the endorsement of notices on title documents and delivery of stock and membership interest certificates to the extent certificatedcertificates) as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and subsisting Liens (subject to the Intercreditor Agreement) perfected Liens extent required by the Collateral Documents) on the rights and Guarantee Requirementproperties purported to be subject to the Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iiiv) as promptly as practicable after the reasonable request therefor by of the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property (that is not an Excluded Real Property, title reports, surveys and environmental assessment reports and appraisals ) (if required under FIRREA), flood certifications under Regulation H but in any event on or before the delivery of the Federal Reserve Boardapplicable Mortgage delivered pursuant to this Section 6.12(b) (and, provided in the case of Flood Documents, three (3) Business Days before the delivery of such Mortgage)) owned in fee by a Loan Party that is the Administrative Agent may subject of such request, the documents and instruments specified in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date Section 6.14(b) in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation and Flood Documents with respect to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtainedMaterial Real Property; and
(ivi) the Borrower shall obtain the security interests at any time and Guarantees set forth on Schedule 1.1A on or prior from time to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Datetime, promptly after the acquisition of execute and deliver any Material Real Property by the Borrower or any Loan Party, and all further instruments and documents and take all such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to other action as the Administrative Agent and will takeor the Collateral Agent in its reasonable judgment may deem necessary or desirable in obtaining the full benefits of, or cause in perfecting and preserving the relevant Loan PartyLiens of, to takesuch Guaranties, the actions referred to in Section 8.13(b)Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents.
(c) Notwithstanding anything the foregoing, the Collateral Agent shall not take a security interest in those assets as to which the Administrative Agent shall determine, in its reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the contrary contained hereinbenefit to the Lenders of the security afforded thereby.
(d) For the avoidance of doubt, no assets (x) changes in organization of any entity that becomes a Loan Party or any of its Restricted Subsidiaries (such as a result conversion of a Permitted Acquisition corporation into a limited liability company) shall not constitute a formation or acquisition of a Restricted Subsidiary; provided that within ten (y10) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal days (or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, such longer period as may be reasonably required agreed to by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsole discretion) such converted entity shall deliver such instruments and documents (including Uniform Commercial Code financing statements and affirmation of its obligations under the Loan Documents) and take all such other action as the Administrative Agent or the Collateral Agent may deem necessary or desirable in preserving the continuing validity and perfection of the Collateral Agent’s Lien on the Collateral owned by (or, in the case of Equity Interests of such Person included in the Collateral, issued by) such Person.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted ceasing to be an Immaterial Subsidiary or (iii) any Subsidiary becoming a Wholly-Owned that was an Excluded Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (yon or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) upon for the acquisition of any material assets by Fiscal Quarter in which the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such relevant formation, acquisition acquisition, designation or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days cessation occurred (or such longer period as the Administrative Agent may agree reasonably agree), the Borrower shall (A) cause such Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in its reasonable discretionclause (a) in in of the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Subsidiary (other than any Excluded Subsidiary) to duly execute and deliver to the Administrative Agent Security Agreement Supplementsa signed copy of a customary opinion of counsel for such Subsidiary, Intellectual Property Security Agreements addressed to the Administrative Agent and the other security agreements and documents relevant Secured Parties.
(including, b) Within 90 days after the documents listed in Section 8.13(b) with respect to Mortgages acquisition by any Loan Party of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and Estate Asset other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver than any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days Excluded Asset (or such longer period as the Administrative Agent may agree reasonably agree), the Borrower shall cause such Loan Party to comply with the requirements set forth in its reasonable discretionclause (b) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect to any Material Domestic Real Estate Asset owned by any Subsidiary that at the time such Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of MortgagesLoan Party under Section 5.12(a) above, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Subsidiary on the first day of the time period within which such Subsidiary is required to become a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.12(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, no assets it is understood and agreed that:
(xi) the Administrative Agent may grant extensions of time (including after the expiration of any entity relevant period, which apply retroactively) for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Subsidiary (in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time;
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents;
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements (other than, in each case to the extent the same otherwise constitute Collateral, control of pledged Capital Stock, Material Debt Instruments, and deposit accounts of the Loan Parties that becomes a are concentration accounts);
(iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, other than, subject to the terms of the last paragraph of Section 4.01, as expressly set forth on Schedule 5.15;
(v) no Loan Party will be required to (A) take any action outside of the U.S. in order to create or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule, in each case other than with respect to a Foreign Subsidiary designated as a result Subsidiary Guarantor pursuant to the last sentence of the definition of “Subsidiary Guarantor”;
(vi) in no event will the Collateral include any Excluded Asset;
(vii) no action shall be required to perfect any Lien with respect to (1) any vehicle or other asset subject to a certificate of title, (2) Letter-of-Credit Rights, (3) the Capital Stock of any Immaterial Subsidiary and/or (4) the Capital Stock of any Person that is not a subsidiary, which Person, if a subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein can be perfected by filing a Form UCC-1 (or similar) financing statement under the UCC;
(viii) no action shall be required to perfect a Lien in any asset in respect of which the perfection of a Permitted Acquisition security interest therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (yother than in the case of capital leases, purchase money and similar financings), (2) acquired from a third party violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited by a Loan Party outside the ordinary course terms of businessthis Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of capital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision, it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination and which is otherwise eligible for inclusion in other applicable Requirements of Law notwithstanding the calculation of the Borrowing Base relevant prohibition, violation or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower termination right;
(without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4ix) (A) Inventory appraisals no Loan Party shall be required to perfect a security interest in any asset to the extent the perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to (B) the Administrative Agent and the Secured Parties shall not enforce any security interest (including foreclosure, taking possession, storage, sale, distribution or otherwise), or right or remedy with respect to any Collateral that may be limited or restricted by any Requirement of Law in violation of such Requirement of Law, or requires any consent, authorization approval or license under any Requirement of Law that has not been obtained;
(x) any joinder or supplement to any Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Subsidiary that is required to become a Loan Party pursuant to Section 5.12(a) above (including any Joinder Agreement) may, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document;
(xi) (A) no Loan Party shall be required to take any action required under the Federal Assignment of Claims Act and (B) such no Secured Party will be permitted to exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables;
(xii) for the avoidance of doubt, in no event shall any person that is not a subsidiary or that constitutes an Excluded Subsidiary be required to provide a Guaranty of any Secured Obligation or comply with any other due diligence with respect requirement of this Section 5.12;
(xiii) no Loan Party shall be required to such assets as provide any leasehold Mortgages; and
(xiv) the Administrative Agent may shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other Tax or expenses relating to such Lien) is excessive in its Permitted Discretion, all relation to the benefit to the Lenders of the results of security afforded thereby as reasonably determined in writing by the foregoing to be satisfactory to Borrower and the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders) to ensure that the Collateral and Guarantee Requirement continues to be is satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary, but including any Subsidiary or that ceases to constitute an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 8.3 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets (including fee-owned real property) by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than (1) assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien), and (2) Excluded Property (as defined in the Security Agreement)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders) may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties fee-owned real properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative AgentCollateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders);
(Bii) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders) may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders) (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Ciii) within forty-five (45) days after such formation, acquisition or designation or such longer period as the Administrative Agent may agree (acting at the direction of, or with the consent of, the Requisite Lenders) in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver (A) any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and (B) instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided that no such Material Domestic Subsidiary shall be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Div) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect ); provided that no such Material Domestic Subsidiary shall be required to all Deposit Accountsenter into any Collateral Documents or other pledge or security documents governed or purported to be governed by foreign law; and
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the written request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree (acting at the direction of, or with the consent of, the Requisite Lenders) in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iiivi) as promptly as practicable after (a) within the reasonable request therefor by time periods set forth in Section 8.13(b), take, or cause the Administrative Agentrelevant Loan Party to take, deliver to the Administrative Agent actions set forth in Section 8.13(b) with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H fee-owned real property owned as of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; Effective Date and (iib) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property fee-owned real property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property fee-owned real property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee RequirementSection 8.13, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to set forth in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionfee-owned real property.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xA) upon the formation or acquisition of any new direct or indirect Wholly-Owned wholly owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, Party or the designation in accordance with Section 8.3, 6.17 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic wholly owned Subsidiary as a Restricted Subsidiary or (B) any Restricted Subsidiary becoming a Wholly-Owned guaranteeing any obligations of Holdings, the Company or any other Restricted Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition in respect of any material assets by Junior Financing, the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary Company shall, in each case at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Company’s expense:
(i) within forty-five thirty (4530) days (or such greater number of days specified below) after such formation, acquisition acquisition, designation or designation or, in each case, guarantee or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Restricted Subsidiary that is required (x) not a Foreign Subsidiary or (y) a Foreign Subsidiary that has guaranteed the obligations of Holdings, the Company or a Restricted Subsidiary in respect of any Junior Financing, to become duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Obligations of each Loan Party;
(B) cause each such Restricted Subsidiary Guarantor that is a Foreign Subsidiary of an Overseas Borrower to duly execute and deliver to the Administrative Agent a guarantee or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the obligations of such Overseas Borrower under the Collateral Loan Documents and Guarantee Requirement the Secured Hedge Agreements;
(C) cause each direct or indirect parent of such Restricted Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the obligations of such Restricted Subsidiary, if any, under the Loan Documents;
(D) cause each such Restricted Subsidiary to furnish to the Administrative Agent a description of the Material Real Properties real properties owned by such Material Domestic Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(BE) within forty-five cause (45x) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement this Section 6.12(a)(i)(A) or Section 6.12(a)(i)(B) to duly execute and deliver to the Administrative Agent Mortgages, Security Agreement Supplements, Intellectual Property IP Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.14(b)), as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents security agreements in effect on the Restatement Effective Closing Date), granting a Lien in substantially all of the real and personal property of such Restricted Subsidiary, in each case granting Liens required by securing the Collateral Obligations of such Restricted Subsidiary under its Guaranty and Guarantee Requirement;
(Cy) cause each such Material Domestic direct or indirect parent of each Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(C) to duly execute and deliver to the Collateral Administrative Agent such Security Agreement Supplements and Guarantee Requirement other security agreements as specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Security Agreements in effect on the Closing Date) granting a Lien on all of the outstanding Equity Interests issued by such Restricted Subsidiary and held by such direct or indirect parent, and all intercompany debt issued by such Restricted Subsidiary and held by such direct or indirect parent, in each case securing the Obligations of such Restricted Subsidiary under its Guaranty;
(F) (x) cause each such Restricted Subsidiary that is required to become a Guarantor pursuant to this Section 6.12(a)(i)(A) or Section 6.12(a)(i)(B) to deliver any and all certificates representing Equity Interests (owned by such Restricted Subsidiary accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments evidencing the intercompany debt held by such Restricted Subsidiary, indorsed in blank to the extent certificatedAdministrative Agent and (y) cause each direct or indirect parent of such Restricted Subsidiary that are is required to be pledged provide a guaranty pursuant to Section 6.12(a)(i)(C) to deliver any and all certificates representing the Collateral and Guarantee Requirementoutstanding Equity Interests of such Restricted Subsidiary held by such direct or indirect parent, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness debt issued by such Restricted Subsidiary and held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documentsdirect or indirect parent, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1G) take and cause the applicable Material Domestic such Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and the indorsement of notices on title documents and delivery of stock and membership interest certificates to the extent certificatedcertificates) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral Mortgages, Security Agreement Supplements, IP Security Agreements and Guarantee Requirementsecurity agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(ii) within forty-five thirty (4530) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.12(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Propertyparcel of real property with a value in excess of $2,000,000 owned or held by such Restricted Subsidiary that is the subject of such request, title reportsreports in scope, form and substance reasonably satisfactory to the Administrative Agent and, to the extent available, surveys and environmental assessment reports and appraisals (if required under FIRREA)reports. For the avoidance of doubt, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) no Foreign Subsidiary shall be obligated hereunder to guarantee the obligations of any Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to other than an Overseas Borrower (unless such security interests and Guarantees set forth on Schedule 1.1A; Foreign Subsidiary is a guarantor of any Junior Financing) and (ii) after no more than 65% of the Restatement Effective Date, promptly after voting Equity Interests of any Subsidiary that is not a Domestic Subsidiary shall be required to be pledged to support obligations of any Borrower other than Overseas Borrowers (except to the extent pledged to support obligations under any Junior Financing).
(b) Upon the acquisition of (x) any Material Real Property personal property (other than IP Rights) by the Borrower any Loan Party or (y) fee owned real property with a value in excess of $2,000,000 by any Loan Party, and such Material Real Property personal property shall not already be subject to a perfected Lien pursuant to in favor of the Collateral and Guarantee RequirementAdministrative Agent for the benefit of the Secured Parties, the Borrower Company shall give notice thereof to the Administrative Agent and shall, if requested by the Administrative Agent or the Required Lenders, cause such assets to be subjected to a Lien securing such Loan Party’s Obligations and will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b6.12(a)(i)(D), (E) and (G) with respect to personal property and Section 6.14(b) with respect to real property.
(c) Notwithstanding anything On or prior to the contrary contained hereindate on which any Overseas Borrower is designated in accordance with Section 2.14 or such later date (not more than thirty (30) days later) as the Administrative Agent may agree in its discretion, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businessCompany shall, in each case, which were not included in case at the analysis under the most recent Updated Inventory Appraisal or Field Examination Company’s expense (A) cause each wholly owned Restricted Subsidiary of such Overseas Borrower and which is otherwise eligible for inclusion in the calculation each direct and indirect parent of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless such Overseas Borrower to duly execute and until deliver to the Administrative Agent has completed a guaranty or received, guaranty supplement in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals form and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners substance reasonably satisfactory to the Administrative Agent and Agent, guaranteeing the obligations of such Overseas Borrower under the Loan Documents, (B) cause such Overseas Borrower, its wholly owned Restricted Subsidiaries and, to the extent that it has not already done so, each direct or indirect parent of the Overseas Borrower, at the Company’s expense, to execute, deliver, file and record any documents, statements, assignment, instrument agreement or other paper and take all other actions necessary in order to create a first priority perfected security interest in substantially all of the assets (subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction)) of such Overseas Borrower and each of its wholly owned Restricted Subsidiaries and direct or indirect parents securing their respective obligations under the Loan Documents, (C) deliver to the Administrative Agents an opinion of counsel, addressed to the Administrative Agent and the other Secured Parties, reasonably acceptable to the Administrative Agent addressing the matters set forth in clause (B) above and such other due diligence with respect to such assets matters as the Administrative Agent may require reasonably request and (D) such other documents or certificates evidencing matters referred to in its Permitted Discretion, all of the results of the foregoing to be satisfactory to Section 4.01(a)(v) and Section 4.01(a)(vi) as the Administrative Agent shall reasonably request.
(d) Notwithstanding the foregoing, (x) the Administrative Agent shall not take a security interest in those assets as to which the Administrative Agent shall determine, in its Permitted Discretionreasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the benefit to the Lenders of the security afforded thereby and (y) Liens required to be granted pursuant to this Section 6.12 shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction).
Appears in 1 contract
Samples: Credit Agreement (LEM America, Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s Borrowers’ expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is would otherwise be a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary, (y) upon the acquisition of any material assets (other than Excluded Assets) by the Borrower or any Subsidiary Guarantor Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets (other than Excluded Assets) held by such Subsidiary (in the case of each caseof (x), (y) and (z), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(ia) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Guaranty (or a joinder thereto) and other documentation the Administrative Agent a description may reasonably request from time to time in order to carry out more effectively the purposes of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to Guaranty and the Administrative Agent;Collateral Documents and
(BA) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, Mortgages and the other items listed in Section 6.11(2)(b), mutatis mutandis, with respect to any Material Real Property, supplements to the Security Agreement SupplementsAgreement, a counterpart signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective DateClosing Date as amended and in effect from time to time), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(CB) within forty-five (45) days after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(DC) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of (i) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (ii) to the extent applicable, each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take whatever action customary action(s) (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and perfected (subject to the Intercreditor AgreementLiens permitted by Section 7.01) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iiD) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary Opinion of Counsel, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(1) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey actions relating to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent canLiens on real property are governed by Section 6.11(2) and not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in this Section 8.13(b6.11(1).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Credit Agreement (Chobani Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the limitations and exceptions of this Agreement, including, without limitation, the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under an Excluded Subsidiary) or any Subsidiary becoming a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof wholly owned Material Domestic Subsidiary (without limitation of the obligations to perfect such Lien)in each case, other than an Excluded Subsidiary):
(i) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, other than with respect to any Excluded Assets, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, any existing title reports, surveys and abstracts or environmental assessment reports reports, to the extent available and appraisals (if required under FIRREA), flood certifications under Regulation H in the possession or control of the Federal Reserve Board, Borrower; provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any existing environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.1A (or such later date as the Administrative Agent may agree in its reasonable discretion); and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon on or before the acquisition date that is 60 days after the end of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (Fiscal Quarter in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by which such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition transaction or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Borrower shall (A) in cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevant Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i)(A) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardClosing Date) where it reasonably determines, provided that in consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverBorrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtainedaccomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents, and each Lender hereby consents to any such extension of time, and (B) any extension granted by the First Lien Agent under the First Lien Credit Agreement or any other Loan Document (as defined in the First Lien Credit Agreement) shall automatically constitute an extension the corresponding time or period in this Agreement or the corresponding Loan Document; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents, (iii) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, (iv) no Loan Party will takebe required to take any action that is limited or restricted by the Collateral and Guarantee Requirement or any Loan Document, or cause (v) in no event will the relevant Loan PartyCollateral include any Excluded Assets, (vi) no action shall be required to take, perfect a Lien in any asset in respect of which the actions referred to in Section 8.13(b).
perfection of a security interest therein would (c1) Notwithstanding anything to violate the contrary contained herein, no assets (x) terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesscapital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law or (2) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the Closing Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC or Field Examination other applicable law notwithstanding the relevant prohibition, violation or termination right; and which is otherwise eligible for inclusion in the calculation of the Borrowing Base (vii) any joinder or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the Administrative Agent extent necessary to ensure that such representation or warranty is true and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory correct to the Administrative Agent in its Permitted Discretionextent required thereby or by the terms of any other Loan Document.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Hayward Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) Notify the Borrower’s expenseAdministrative Agent concurrently with the delivery of any Compliance Certificate delivered hereunder whether the Loan Party Threshold is satisfied (each such date of notice, subject to the provisions of the Collateral “Notice Date”), and Guarantee Requirement promptly thereafter (and any applicable limitation in any Collateral Documentevent within thirty (30) days after such delivery, take all action necessary or reasonably requested as such time period may be extended by the Administrative Agent to ensure that the Collateral in its sole discretion), if and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by extent necessary to satisfy the Loan Party Threshold as of such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Notice Date, cause one or more Non-Guarantor Subsidiaries to: 107 107
(i) within forty-five (45) days become a Subsidiary Guarantor by delivering to the Administrative Agent a duly executed Subsidiary Guaranty Agreement (or a joinder to a previously delivered Subsidiary Guaranty Agreement, if appropriate);.
(ii) if a Collateral Period is in effect: [Reserved]
(A) grant a security interest in all of its personal property (including but not limited to Equity Interests in its Subsidiaries and, to the extent not subject to any other Lien permitted by Section 7.01, ships and shipping vessels) (subject to the exceptions (if any) specified in the particular Collateral Document(s)) by delivering to the Administrative Agent such greater number of days specified belowduly executed Collateral Documents (or supplements to previously delivered Collateral Documents, if appropriate) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:reasonably request;
(AB) cause deliver all of the documentation (e.g. instruments, stock certificates and related transfer powers, etc.) required to be delivered under each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish Document or supplement;
(C) deliver to the Administrative Agent a description evidence of all filings and recordations that are necessary to perfect the security interests of the Material Real Properties owned by such Material Domestic Subsidiary Administrative Agent, on behalf of the Guaranteed Parties, in detail the Collateral and the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative AgentAgent that upon such filings and recordations such security interests constitute valid and perfected first priority Liens thereon (subject to Liens permitted by Section 7.01);
(BD) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplementsthe results of a Lien search (including a search as to judgments, Intellectual Property Security Agreements pending litigation, bankruptcy, tax and intellectual property matters), in form and substance reasonably satisfactory thereto, made against such Non-Guarantor Subsidiaries under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all such assets of such Non-Guarantor Subsidiaries, indicating among other security agreements things that the assets of each such Non-Guarantor Subsidiaries are free and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages clear of any Material Real PropertyLien (except for Liens permitted by Section 7.01);
(E) deliver to the Administrative Agent, as reasonably requested by and in each case in form and substance reasonably satisfactory to the Administrative Agent, evidence of property hazard, business interruption and liability insurance covering such Non-Guarantor Subsidiaries, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent, on behalf of the Guaranteed Parties, as lender’s loss payee on all policies for property hazard insurance and naming the Administrative Agent (consistent with and the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect Lenders as 108 108 additional insured on the Restatement Effective Dateall policies for liability insurance), in each case granting Liens required and if requested by the Collateral and Guarantee RequirementAdministrative Agent, copies of such insurance policies;
(Ciii) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy documents of an opinionthe types referred to in clauses (iii), addressed to the Administrative Agent (iv) and the other Secured Parties, (vi) of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and4.01(a);
(iiiiv) as promptly as practicable after the reasonable request therefor unless waived by the Administrative Agent, deliver to the Administrative Agent with respect opinions of counsel and local counsel, addressed to the Administrative Agent and each Material Real PropertyLender, title reports, surveys as to the matters concerning such Non-Guarantor Subsidiaries and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that Loan Documents to which it is a party as the Administrative Agent may reasonably request, which such opinions shall be in its reasonable discretion accept any such existing report or survey form and substance, including as to exceptions and qualifications, reasonably acceptable to the extent prepared Administrative Agent; and
(v) deliver to the Administrative Agent such other documents as of a date may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent; providedprovided that if notice with respect to a Collateral Trigger Date is given pursuant to subsection (b) below after such delivery but prior to any applicable Non-Guarantor Subsidiary becoming a Loan Party, howeverall of the documentation required to be delivered pursuant to this subsection (a) may be delivered within the time period set forth in subsection (b) below.
(b) Notify the Administrative Agent (x) promptly (and in any event within five (5) Business Days) following any Responsible Officer of the Company becoming aware that a Collateral Trigger Date has occurred and (y) concurrently with the delivery of any Compliance Certificate delivered hereunder whether a Collateral Trigger Date has occurred (each such date of notice, the “Collateral Trigger Notice Date”), and, in the case of each of the foregoing clauses (x) and (y), promptly thereafter (and in any event within thirty (30) days after such occurrence, as such time period may be extended by the Administrative Agent in its sole discretion) cause each Person that there is a Loan Party (or is or would be required to become a Loan Party pursuant to subsection (a) above) and, if necessary to satisfy the Loan Party Threshold as of such Collateral Trigger Notice Date, one or more additional Non-Guarantor Subsidiaries to:[Reserved]
(i) grant a first priority security interest in all of its personal property (including but not limited to Equity Interests in its Subsidiaries and, to the extent not subject to any other Lien permitted by Section 7.01, ships and shipping vessels) (subject to the exceptions (if any) specified in the particular Collateral Document(s)) by delivering to the Administrative Agent such duly executed Collateral Documents as the Administrative Agent may reasonably request;
(ii) deliver to the Administrative Agent all of the documentation (e.g. instruments, stock certificates and related transfer powers, etc.) required to be delivered under each such Collateral Document; 109 109
(iii) deliver to the Administrative Agent documents of the types referred to in clauses (iii), (iv) and (vi) of Section 4.01(a);
(iv) unless waived by the Administrative Agent, deliver to the Administrative Agent opinions of counsel and local counsel, addressed to the Administrative Agent and each Lender, as to the matters concerning each such Person and the Loan Documents to which it is a party as the Administrative Agent may reasonably request, which such opinions shall be no obligation in form and substance, including as to exceptions and qualifications, reasonably acceptable to the Administrative Agent;
(v) deliver to the Administrative Agent evidence of all filings and recordations that are necessary to perfect the security interests of the Administrative Agent, on behalf of the Guaranteed Parties, in the Collateral and the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that upon such filings and recordations such security interests constitute valid and perfected first priority Liens thereon (except for Liens permitted by Section 7.01);
(vi) deliver to the Administrative Agent the results of a Lien search (including a search as to judgments, pending litigation, bankruptcy, tax and intellectual property matters), in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of each such Person, indicating among other things that the assets of each such Person are free and clear of any Lien (except for Liens permitted by Section 7.01);
(vii) deliver to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent, evidence of property hazard, business interruption and liability insurance covering each such Person, evidence of payment of all insurance premiums for the current policy year of each policy (with appropriate endorsements naming the Administrative Agent, on behalf of the Guaranteed Parties, as lender’s loss payee on all policies for property hazard insurance and naming the Administrative Agent and the Lenders as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies; and
(viii) deliver to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent.
(c) If other than pursuant to subsection (a) or (b) above, a Non-Guarantor Subsidiary becomes a Subsidiary Guarantor and delivers any of the documentation referenced in such subsections, concurrently with the delivery of such documentation, the Company will cause such Non-Guarantor Subsidiary to deliver to the Administrative Agent any environmental assessment report whose disclosure documents of the types referred 110 110 to in clauses (iii), (iv) and (vi) of Section 4.01(a) and, unless waived by the Administrative Agent would require the consent Agent, opinions of a Person other than the Borrower or one of its Subsidiariescounsel and local counsel, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof addressed to the Administrative Agent and will takeeach Lender, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything as to the contrary contained herein, no assets (x) of any entity that becomes a matters concerning each Loan Party and the Loan Documents to which it is a party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or receivedmay reasonably request, which such opinions shall be in any case at the expense of the Borrower (without regard toform and substance, or counting againstincluding as to exceptions and qualifications, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by acceptable to the Administrative Agent, from appraisers all in form, content and examiners scope reasonably satisfactory to the Administrative Agent and Agent.
(Bd) such other due diligence with respect The provisions of this Section 6.12 shall not apply to such assets as to which the Administrative Agent may require in its Permitted Discretion, all and the Company shall reasonably determine that the costs and burdens of obtaining a security interest therein or perfection thereof outweigh the value of the results security afforded thereby. [Reserved]
(e) So long as no Default exists and no Collateral Period is in effect, upon the request of the foregoing to be satisfactory to Company, the Administrative Agent in its Permitted Discretion.will, at the Company’s expense, execute and deliver to the Loan Parties such documents as the Company may reasonably request to evidence the release of any or all Collateral (other than any Cash Collateral provided hereunder) from the assignment and security interest granted under the Collateral Documents.[Reserved]
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or not an Excluded Subsidiary, including as a result of a Division, (ii) any Subsidiary ceasing to be an Excluded Subsidiary (including pursuant to the last sentence of the definition of “Guarantor”) or (iii) the designation of a Discretionary Guarantor, within 60 days of acquisition or formation (or such longer period as the Required Lenders may agree), Holdings shall cause such Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee Requirement”.
(b) Within 120 days after the later of (i) acquisition by any Loan Party, the designation in accordance with Section 8.3, Party of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, Real Estate Asset other than assets constituting Collateral under a Collateral Document that becomes subject any Excluded Asset and (ii) any Material Real Estate Asset ceasing to the Lien created by such Collateral Document upon acquisition thereof be an Excluded Asset (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each any such case, such longer period as the Administrative Agent Required Lenders may agree reasonably agree), Holdings shall cause such Loan Party to comply with the requirements set forth in its reasonable discretion:
clause (Ab) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)”.
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, no assets it is understood and agreed that:
(xi) the Required Lenders may grant extensions of time (at any time, including after the expiration of any entity relevant period, which will be retroactive) for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Subsidiary (in connection with assets acquired, or Subsidiaries formed or acquired after the Closing Date), and each Lender hereby consents to any such extension of time,
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents,
(iii) [reserved],
(iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement;
(v) no Loan Party will be required to (A) take any action outside of the U.S. in order to create or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule;
(vi) in no event will the Collateral include any Excluded Asset,
(vii) no action shall be required to perfect any Lien with respect to (1) any vehicle or other asset subject to a certificate of title, (2) letter-of-credit rights and/or (3) the Capital Stock of any Person that is not a Subsidiary, which Person, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein can be perfected by filing a Form UCC-1 (or similar) financing statement under the UCC;
(viii) [reserved]; and
(ix) any time periods to comply with the foregoing Section 5.12(a) shall not apply to Discretionary Guarantors; provided that clauses (v) and (vi) shall not apply to the Capital Stock or assets of a Foreign Discretionary Guarantor that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside Guarantor pursuant to the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation last sentence of the Borrowing Base or the Term Borrowing Base, may be included in the calculation definition of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion“Guarantor.”
Appears in 1 contract
Samples: Term Loan Credit Agreement (Granite Point Mortgage Trust Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon on or before the acquisition of any material assets by date that is 60 days after the Borrower relevant formation, acquisition, designation or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days cessation occurred (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
reasonably agree), the Borrower shall (A) cause each such Material Domestic Restricted Subsidiary that is required (other than any Excluded Subsidiary) to become a Subsidiary Guarantor under comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary to furnish deliver to the Administrative Agent a description customary opinion of the Material Real Properties owned by counsel for such Material Domestic Subsidiary in detail reasonably satisfactory Restricted Subsidiary, addressed to the Administrative Agent;Agent and the Lenders; provided, however, that notwithstanding the foregoing, no Subsidiary that is an Excluded Subsidiary shall be required to take any action described in this Section 5.11(a).
(Bb) within forty-five (45) days (or within one hundred and eighty (180) Within 90 days (or such longer period as the Administrative Agent may reasonably agree in its (provided that the Administrative Agent will use commercially reasonable discretionefforts to confirm Lenders do not need additional time to complete independent due diligence with respect to any potential Material Real Estate Assets before entering into a new Mortgage)) in (1) after the Closing Date, in the case of Mortgages and related documents specified in Section 8.13(b)Material Real Estate Assets (other than any Excluded Asset) owned by Loan Parties on the Closing Date or (2) after such formationthe acquisition by any Loan Party of any Material Real Estate Asset (other than any Excluded Asset), acquisition or designation, cause each in the case of such Material Domestic Real Estate Assets acquired after the Closing Date, the Borrower shall cause such Loan Party to comply with the requirements set forth in clause (c) of the definition of “Collateral and Guarantee Requirement” with respect to the relevant Material Real Estate Asset; it being understood and agreed that, with respect to any Material Real Estate Asset owned by any Restricted Subsidiary that at the time such Restricted Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Loan Party under Section 8.13(b) with respect to Mortgages of any Material Real Property5.11(a), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Restricted Subsidiary on the first day on which it becomes a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.11(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, it is understood and agreed that:
(i) the Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time,
(ii) the Administrative Agent may in its sole discretion waive the delivery of legal opinions, surveys or other deliverables that are not required for the creation and perfection of security interests in particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such waiver,
(iii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents,
(iv) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of Capital Stock or Material Debt Instruments, in each case, to the extent included in the Collateral),
(v) no assets Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(vi) no Loan Party will be required to (A) take any action outside the U.S. to grant or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule;
(vii) in no event will the Collateral include any Excluded Asset,
(viii) no action shall be required to perfect any Lien with respect to (A) any vehicle or other asset subject to a certificate of title, and any retention of title, extended retention of title rights, or similar rights, (B) Letter-of-Credit Rights, (C) the Capital Stock of any Immaterial Subsidiary or (D) the Capital Stock of any Person that is not a Subsidiary which, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein is perfected by filing a Form UCC-1 financing statement (which, for the avoidance of doubt shall be the only required perfection action),
(ix) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law,
(x) of any entity joinder or supplement to any Loan Guaranty, any Collateral Document or any other Loan Document executed by any Restricted Subsidiary that becomes is required to become a Loan Party pursuant to Section 5.11(a) may, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), include such schedules (or updates to schedules) as a result may be necessary to qualify any representation or warranty with respect to such Restricted Subsidiary set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document,
(xi) the Administrative Agent shall not require the taking of a Permitted Acquisition Lien on, or require the perfection of any Lien granted in, those assets as to which the cost, burden, difficulty or consequence (y) acquired from a third party by a including any effect on the ability of the relevant Loan Party outside to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, in each casestamp, which were not included in intangibles or other Tax or expenses relating to such Lien) outweighs the analysis under benefit to the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation Lenders of the Borrowing Base or the Term Borrowing Basesecurity afforded thereby, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of as reasonably determined by the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory and
(xii) no Subsidiary of the Borrower shall be required to provide any guarantee, pledge or asset support agreement that, in the reasonable judgment of the Borrower in consultation with the Administrative Agent and (B) such other due diligence with respect to such assets as Agent, would subject the Administrative Agent may require in its Permitted Discretion, all Borrower or any Subsidiary of the results Borrower to any adverse tax consequence as a result of the foregoing to be satisfactory to application of Section 956 of the Administrative Agent in its Permitted DiscretionCode.
Appears in 1 contract
Samples: Credit Agreement (Cowen Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) including (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct Party or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or upon any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (other than an Excluded Subsidiary), (y) upon any Excluded Subsidiary ceasing to be an Excluded Subsidiary, or upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each casecase under the foregoing clauses (y) or (z), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(ia) within forty-five (45) days (or such greater number of days specified belowlonger period as the Collateral Agent may agree in its sole discretion) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(Ai) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to a joinder or amendment to the Guaranty in form and substance reasonably satisfactory to the Administrative Agent;
(ii) cause each such Material Domestic Subsidiary Guarantor under the Collateral and Guarantee Requirement to promptly furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(Biii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents in effect on the Restatement Effective Date), in each case case, granting Liens required by the Collateral and Guarantee Requirement; provided none of the Borrower or any of its Subsidiaries shall not be required to enter into any security agreements governed by foreign law;
(Civ) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest cause the Liens or security interests created by the Collateral Documents in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) be duly perfected Liens as required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 8.11 with respect to all Deposit Accounts; and;
(iivi) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinionopinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a8.10(a) as the Administrative Agent may reasonably request; and;
(b) in the case of any Material Real Property, provide the Collateral Agent with (x) prompt notice thereof and (y) Mortgages with respect to such owned real property in form and substance reasonably satisfactory to the Collateral Agent (consistent with the Mortgages in effect on the date thereof) within ninety (90) days (or such longer period as the Collateral Agent may agree in its sole discretion) of the acquisition of, or, if requested by the Collateral Agent, entry into, or renewal of, a ground lease in respect of, such real property in each case together with:
(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording Taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements available in the applicable jurisdiction and in amount, reasonably acceptable to the Collateral Agent (not to exceed the value of the real properties covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, subject only to Liens permitted by Section 9.1, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably request and is available in the applicable jurisdiction;
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Boardreports, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained;
(iv) opinions of local counsel for the Loan Parties in states in which the real properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(v) such other evidence that all other actions that the Administrative Agent or Collateral Agent may reasonably deem necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages has been taken; and
(i) at any time any books and records of the Borrower shall obtain and its Subsidiaries are located on any real property of a Loan Party (whether such real property is now existing or acquired after the security interests and Guarantees set forth Effective Date) which is not owned by a Loan Party, or is stored on Schedule 1.1A on the premises of a bailee, warehouseman, or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; similar party, and (ii) after if the Restatement Effective Date, promptly after the acquisition of any Material Real Property Borrower’s headquarter is not owned by the Borrower or any Loan Party, and such Material Real Property shall not already be subject use commercially reasonable efforts to a perfected Lien pursuant to obtain written landlord waivers or collateral access agreements, as the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businesscase may be, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination form and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably substance satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Samples: Credit Agreement (eHealth, Inc.)
Covenant to Guarantee Obligations and Give Security. At (u) Upon (x) the Borrower’s expense, subject to the provisions request of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that following the occurrence and during the continuance of a Specified Event of Default or (y) (i) the delivery of the report (the “Collateral and Guarantee Requirement continues Report”) required to be satisfied, including:
(adelivered pursuant to Section 5.02(g) (x) upon indicating new Collateral or locations or the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary) or (ii) the delivery of a Compliance Certificate indicating that a Domestic Subsidiary previously determined to be an Immaterial Subsidiary or an Excluded Subsidiary is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, then the Borrowers shall, in each case at the Borrowers’ expense:
(i) by any Loan Party, in connection with the designation in accordance with Section 8.3, formation or acquisition of any existing direct or indirect Wholly-Owned a Domestic Subsidiary that is a Material Subsidiary (other than an Excluded Subsidiary) or the determination that any Domestic Subsidiary as a Restricted previously determined to be an Immaterial Subsidiary or any an Excluded Subsidiary becoming a Wholly-Owned is no longer an Immaterial Subsidiary that is a Material Domestic or an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Partyas applicable, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days 20 Business Days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period later date as the Administrative Agent may shall agree in its reasonable sole discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under after the delivery of the Collateral and Guarantee Requirement to furnish to Report or Compliance Certificate, request, or the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designationformation of such Subsidiary, cause each such Material Domestic Subsidiary, and cause each direct and indirect parent of such Subsidiary that is required to become the Parent Borrower or a Guarantor pursuant to the Collateral Domestic Subsidiary and Guarantee Requirement not an Excluded Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents;
(ii) within 20 Business Days (or such later date as the Administrative Agent shall agree in its sole discretion) after such request or the consummation of such acquisition or formation or after the delivery of the Collateral Report or such Compliance Certificate, duly execute and deliver, and cause each such new Loan Party to duly execute and deliver, to the Administrative Agent pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the MortgagesAgent, Security Agreementincluding delivery of all Pledged Equity in and of such Subsidiary, Intellectual Property Security Agreements and other Collateral Documents instruments of the type specified in effect on the Restatement Effective DateSections 4.01(c)(iv) and (v), in each case granting securing payment of all the Obligations of the applicable Loan Party under the Loan Documents and constituting Liens required by the Collateral and Guarantee Requirementon all such properties;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(Diii) within forty-five (45) days (or within one hundred and eighty (180) days 20 Business Days (or such longer period later date as the Administrative Agent may shall agree in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, request or the consummation of such acquisition or designationafter the delivery of the Collateral Report or such Compliance Certificate, (1) take take, and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required such new Loan Party to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificatedstatements) as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first a perfected security interest having the priority set forth in the ABL Intercreditor Agreement (subject to Permitted Liens) (or, after the Intercreditor Agreementrepayment in full of the ABL Facility, having a first priority Lien (subject to Permitted Liens having priority by operation of Law)) perfected Liens required by on the Collateral properties purported to be subject to the pledges, assignments, Security Agreement Supplements and Guarantee Requirementsecurity DB1/ 131320059.16 agreements delivered pursuant to this Section 5.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(iiiv) within forty-five (45) days (or within one hundred and eighty (180) days 20 Business Days (or such longer period later date as the Administrative Agent may shall agree in its reasonable sole discretion) in after such request or the case consummation of Mortgages and related documents specified in Section 8.13(b)) such acquisition or formation or after the request therefor by delivery of the Administrative Agent (Collateral Report or such longer period as the Administrative Agent may agree in its reasonable discretion)Compliance Certificate, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the Loan Documents contained in clauses (i), (ii) and (iii) above; and
(v) promptly execute and deliver any and all further instruments and documents and take all such matters set forth in this Section 8.11(a) other actions as required by the Security Agreement and at any time and from time to time as the Administrative Agent may reasonably request; anddeem necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such guaranties, pledges, assignments, Security Agreement Supplements and security agreements.
(iiiv) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent Any Subsidiary or Excluded Joint Venture that is not a Guarantor that becomes a guarantor with respect to each any Material Real Property, title reports, surveys and environmental assessment reports and appraisals (Debt of any Loan Party shall comply with Section 5.12(a) as if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as it were a newly formed Domestic Subsidiary of a date reasonably satisfactory to the Administrative AgentLoan Party; providedprovided that, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower with respect to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation determination of the Borrowing Base or the Term Borrowing BaseLoan Formula Threshold, may be included no actions in the calculation any jurisdiction outside of the Borrowing Base United States, documents governed by foreign law or the Term Borrowing Base unless and until the Administrative Agent has completed action are necessary to create or received, perfect any security interest in any case at the expense assets located or titled outside of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may United States shall be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionrequired.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary Party or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements agree- ments and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Acquisition Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reportspolicies, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A; and and
(ii) after the Restatement Effective Acquisition Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the limitations and exceptions of this Agreement, including, without limitation, the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under an Excluded Subsidiary) or any Subsidiary becoming a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof wholly owned Material Domestic Subsidiary (without limitation of the obligations to perfect such Lien)in each case, other than an Excluded Subsidiary):
(i) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, other than with respect to any Excluded Assets, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, any existing title reports, surveys and abstracts or environmental assessment reports reports, to the extent available and appraisals (if required under FIRREA), flood certifications under Regulation H in the possession or control of the Federal Reserve Board, Borrower; provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any existing environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A (or such later date as the Administrative Agent may agree in its reasonable discretion); and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Mattress Firm Holding Corp.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition (including by division) of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted any Excluded Subsidiary or an Excluded Unrestricted Subsidiary) by any Loan PartyParty following the Closing Date, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or upon any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by then the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
Borrower’s expense: (i) within forty-five (45) 30 days after such formation or acquisition or the date upon which such Subsidiary ceases to be an Excluded Subsidiary, as applicable (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period later date as the permitted by Administrative Agent may agree in its reasonable sole discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents, (ii) within 30 days after such formation or acquisition or the date upon which such Subsidiary ceases to be an Excluded Subsidiary, as applicable (or such later date as permitted by Administrative Agent in its sole discretion), furnish to the Administrative Agent a Perfection Certificate, including without limitation, a description of the real properties of such Subsidiary, in detail reasonably satisfactory to the Administrative Agent, (iii) within 60 days after such formation or acquisition or the date upon which such Subsidiary ceases to be an Excluded Subsidiary, as applicable (or such later date as permitted by Administrative Agent in its sole discretion), cause such Subsidiary to duly execute and deliver to the Administrative Agent Mortgages for any Material Real Property as required under this Agreement, the Security Agreement, Security Agreement Supplements, Intellectual Property Security Agreements intellectual property security agreement supplements and other security agreements and documents (includingpledge agreements, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgagesincluding delivery of all pledged Equity Interests in and of such Subsidiary, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents instruments of the type specified in effect on the Restatement Effective DateSection 4.01(a)), in each case granting securing payment of all the Obligations and constituting Liens required on all such real and personal properties of such Subsidiary, subject to Permitted Encumbrances, Liens permitted by the Collateral Loan Documents and Guarantee Requirement;
other Liens acceptable to Administrative Agent (Cit being understood that no leasehold mortgages or deeds of trust need be granted with respect to any leased real -98- property) cause each such Material Domestic and provided that only sixty-five percent (65%) of the total outstanding voting Equity Interests of any Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are CFC or CFC Holdco shall be required to be pledged pursuant to this Section 6.13(a), (iv) within 60 days after such formation or acquisition or the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by date upon which such Material Domestic Subsidiary and required ceases to be pledged pursuant to the Collateral Documentsan Excluded Subsidiary, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days as applicable (or such longer period later date as the permitted by Administrative Agent may agree in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or reasonably advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties, subject to Permitted Encumbrances, Liens permitted under the Loan Documents and other Liens acceptable to the Administrative Agent, purported to be subject to the Intercreditor Mortgages for any Material Real Property as required under this Agreement) perfected Liens required by , the Collateral Security Agreement, Security Agreement Supplements, intellectual property security agreement supplements and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.13 or Schedule 6.18, enforceable against all third parties in accordance with their termsas applicable, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(iiv) within forty-five (45) 60 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period later date as the permitted by Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable sole discretion), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties in form and substance reasonably acceptable satisfactory to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal case consistent with Section 4.01(a) or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any periodSchedule 6.18, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionapplicable.
Appears in 1 contract
Samples: Amendment Agreement (Avient Corp)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfiedsatisfied at all times, includingincluding but in any such case subject to Section 6.17 and the terms of each Junior Lien Intercreditor Agreement, if any, and each Second Lien Intercreditor Agreement, if any:
(a) upon (xi) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, 6.14 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary or Subsidiary, (iii) any non-wholly owned Domestic Subsidiary becoming a Wholly-Owned wholly owned Domestic Subsidiary (other than an Excluded Subsidiary) or (iv) any Domestic Subsidiary that is a Material Domestic was previously an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien))::
(i) within forty-five thirty (4530) days (or such greater number of days specified below) after such formation, acquisition acquisition, designation or designation or, in each case, other event or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Restricted Subsidiary that is or is required to become be a Subsidiary Domestic Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties real properties owned by such Material Domestic Restricted Subsidiary that have a book value in excess of $7,250,000 in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five cause (45x) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is or is required to become be a Domestic Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) Mortgages, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Original Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement and (y) each direct parent of each such Restricted Subsidiary that is or is required to be a Guarantor pursuant to the Collateral and Guarantee Requirement or that is the Borrower to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) such Security Agreement Supplements and other security agreements as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Security Agreements in effect on the Original Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) (x) cause each such Material Domestic Restricted Subsidiary that is or is required to become be a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Restricted Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent and (y) cause each direct parent of such Restricted Subsidiary to deliver any and all certificates representing the outstanding Equity Interests (to the extent certificated) of such Restricted Subsidiary that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments evidencing the intercompany Indebtedness issued by such Restricted Subsidiary and required to be pledged in accordance with the Collateral Documents, indorsed in blank to the Collateral Agent;; and
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formationtake, acquisition or designation, (1) take and cause the applicable Material Domestic such Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic such Restricted Subsidiary that is or is required to become be a Guarantor pursuant to the Collateral and Guarantee Requirement or that is the Borrower to take take, whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificatedcertificates) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent or the Collateral Agent (or in any representative of the Administrative Agent or the Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; andequity,
(ii) within forty-five thirty (4530) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, parcel of real property that is owned by such Restricted Subsidiary that is or is required to be a Domestic Guarantor pursuant to the Collateral and Guarantee Requirement and has a book value in excess of $7,250,000 any existing title reports, surveys and or environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; andreports.
(i) [Reserved];
(ii) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01B on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01B; and and
(iiiii) after the Restatement Effective Original Closing Date, promptly after (x) the acquisition of any Material Real Property material personal property by the Borrower or any Loan PartyDomestic Guarantor or (y) the acquisition of any owned real property by the Borrower or any Domestic Guarantor with a book value in excess of $7,250,000, and if such Material Real Property personal property or owned real property shall not already be subject to a perfected Lien in favor of the Collateral Agent pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and promptly thereafter shall cause such assets to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the Borrower or relevant Loan Party, Domestic Guarantor to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b)6.13(b) with respect to real property.
(c) Notwithstanding anything to Upon the contrary contained herein, no assets Orbitz IPO (x) all Collateral granted by Orbitz TopCo and its Subsidiaries pursuant to the Collateral Documents shall be released and shall be free and clear of any entity that becomes a all Liens created by the Loan Party as a result of a Permitted Acquisition or Documents and (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis all other obligations under the most recent Updated Inventory Appraisal Loan Documents of Orbitz TopCo or Field Examination any of its Subsidiaries that are Subsidiary Guarantors shall also be released, and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to Lenders hereby authorize the Administrative Agent and (B) the Collateral Agent to take all actions requested by Borrower to effectuate such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionreleases.
Appears in 1 contract
Samples: Credit Agreement (Travelport LTD)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent consistent, to the extent applicable, with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) subject to the terms of the First Lien/Second Lien Intercreditor Agreement and the Collateral Documents, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and and, subject to the terms of the First Lien/Second Lien Intercreditor Agreement, delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A; and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Parent Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 6.14 of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under an Excluded Subsidiary) or any Subsidiary becoming a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof wholly owned Material Domestic Subsidiary (without limitation of the obligations to perfect such Lien)in each case, other than an Excluded Subsidiary):
(i) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under pursuant to the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Agent, Mortgages with respect to any Material Real Property, U.S. Security Agreement SupplementsSupplements (or any new Security Agreements, as applicable), Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), required by the Collateral Documents or as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security AgreementAgreements, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Material Domestic Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) that that, in each case, are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or or, subject to the limits of Collateral and Guarantee Requirement, any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;; and
(D) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Material Domestic Subsidiary that is a Guarantor) to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements (or the equivalent in the applicable jurisdiction) and delivery of stock and membership interest certificates to the extent certificated) may be required pursuant to the terms of the Collateral Documents or as necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority and perfected (subject to the Intercreditor Agreementextent required by the Collateral Documents) perfected Liens to the extent required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(ii) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative AgentClosing Date, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals within ninety (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that 90) days (or such longer period as the Administrative Agent may agree in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iisole discretion) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Parent Borrower shall give notice thereof to the Administrative Agent and will takewill, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals duly execute and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence deliver Mortgages with respect to such assets as Material Real Property, including the Administrative Agent may require documents listed in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionSection 6.13(b).
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Security Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingBorrower shall:
(a) upon, after the Third Amendment Effective Date, (x1) upon the formation or acquisition of any new direct or indirect Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (2) the designation in accordance with Section 8.3, 5.13 of any existing direct or indirect Wholly-Owned wholly owned domestic Unrestricted Subsidiary that is of a Material Domestic Subsidiary Loan Party as a Restricted Subsidiary or (3) any Domestic Subsidiary becoming a Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, with respect to clauses (1), (2) and (3), other than assets constituting Collateral under (x) an Unrestricted Subsidiary or (y) a Collateral Document newly acquired Subsidiary whose Indebtedness outstanding at the time of its acquisition would restrict the ability of such Subsidiary to become a Subsidiary Guarantor or require that becomes subject a Lien securing other Indebtedness also secure any outstanding Indebtedness of such newly acquired Subsidiary, as designated in writing and delivered to the Lien created by such Administrative Agent and Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Agent:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Wholly Owned Domestic Subsidiary that is required (a “New Subsidiary Guarantor”) to become execute a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish counterpart to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative AgentGuarantee and Collateral Agreement;
(B) cause the security interests granted by such New Subsidiary Guarantor pursuant to the Guarantee and Collateral Agreement to be perfected to the extent required by the Guarantee and Collateral Agreement;
(ii) within forty-five ninety (4590) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in in discretion deliver to the case of Mortgages and related documents specified in Section 8.13(b)) after Collateral Agent, to the extent such formation, acquisition or designation, cause each such Material Domestic designation occurs after the Third Amendment Effective Date:
(A) an Additional Mortgage duly executed and acknowledged by the New Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any each Material Real Property)Property owned or leased by such New Subsidiary Guarantor, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as reasonably requested by and shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent;
(consistent B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with the Mortgagesrespect to each such Mortgaged Property to be subject to an Additional Mortgage on which a “Building” (as defined in 12 CFR Chapter III, Security Agreement, Intellectual Property Security Agreements Section 339.2) is located (together with a notice about special flood hazard area status and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required flood disaster assistance duly executed by the Collateral Borrower and Guarantee Requirementeach Loan Party relating thereto);
(C) cause a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each such Material Domestic Subsidiary of which shall (1) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (2) name the Collateral Agent, on behalf of the Secured Parties, as additional insured, (3) in the case of flood insurance, (x) identify the addresses of each property located in a special flood hazard area, (y) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (z) provide that is required to become a Guarantor pursuant the insurer will give the Collateral Agent forty-five (45) days’ written notice of cancellation or non-renewal and (4) otherwise be in form and substance satisfactory to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(E) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(b) within ninety (90) days after the acquisition by any Loan Party of any Material Real Property owned by such Loan Party, to the extent acquired after the Fourth Amendment Effective Date,
(i) an Additional Mortgage duly executed and acknowledged by such Loan Party with respect to each Material Real Property owned or leased by such Loan Party, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Collateral Agent;
(ii) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such Mortgaged Property on which a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto);
(iii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (B) name the Collateral Agent, on behalf of the Secured Parties, as additional insured, (C) in the case of flood insurance, (1) identify the addresses of each property located in a special flood hazard areas, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (3) provide that the insurer will give the Collateral Agent forty-five (45) days days’ written notice of cancellation or non-renewal and (or within one hundred D) be otherwise in form and eighty substance satisfactory to the Collateral Agent;
(180iv) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(v) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(c) Within sixty (60) days of the Fourth Amendment Effective Date, the Borrower shall cause the applicable Loan Parties to, take all actions required by Section 5.10(b) with respect to each real property that falls within the definition of Fourth Amendment Material Real Property, as if Fourth Amendment Material Real Property had been acquired after the Fourth Amendment Effective Date and as if Section 5.10(b) were applicable by its terms to Fourth Amendment Material Real Property.
(d) Within 90 days of the date that all of the Xxxxxx 2.25% Convertible Notes and Xxxxxx 3.25% Convertible Notes are paid in full or discharged, the requirements of Section 5.10(b) and (c) shall apply to the Xxxxxx Principal Property as if it had been acquired on such longer period date. Notwithstanding anything to the contrary herein, (1) the Borrower and its subsidiaries shall not be required to grant a security interest in any (A) Excluded Assets or (B) any Real Property or other property held by the Borrower or any of its Restricted Subsidiaries as a lessee under a lease if the Administrative Collateral Agent may agree determines (in its reasonable discretion) in that the case of Mortgages and related documents specified in Section 8.13(b)) after Real Property or other property subject to such formation, acquisition lease is not material to the business or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent operations of the applicable Material Domestic Subsidiary that is required to become Borrower and its subsidiaries, taken as a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgageswhole, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with if, and for so long as, the requirements creation or perfection of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (pledges of or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree security interests in its reasonable discretion) particular assets, in the case reasonable judgment of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Collateral Agent and the other Secured PartiesBorrower, the cost of counsel for creating or perfecting such pledges or security interests in such assets shall be excessive in view of the Loan Parties reasonably acceptable benefits to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor be obtained by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consentLenders therefrom, such consent canassets need not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)pledged.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon on or before the acquisition of any material assets by date that is 60 days after the Borrower relevant formation, acquisition, designation or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days cessation occurred (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
reasonably agree), the Borrower shall (A) cause each such Material Domestic Restricted Subsidiary that is required (other than any Excluded Subsidiary) to become a Subsidiary Guarantor under comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary to furnish deliver to the Administrative Agent a description customary opinion of the Material Real Properties owned by counsel for such Material Domestic Subsidiary in detail reasonably satisfactory Restricted Subsidiary, addressed to the Administrative Agent;Agent and the Lenders; provided, however, that notwithstanding the foregoing, no Subsidiary that is an Excluded Subsidiary shall be required to take any action described in this Section 5.11(a).
(Bb) within forty-five (45) days (or within one hundred and eighty (180) Within 60 days (or such longer period as the Administrative Agent may reasonably agree in its (provided that the Administrative Agent will use commercially reasonable discretionefforts to confirm Lenders do not need additional time to complete independent due diligence with respect to any potential Material Real Estate Assets before entering into a new Mortgage)) in (1) after the Closing Date, in the case of Mortgages and related documents specified in Section 8.13(b)Material Real Estate Assets (other than any Excluded Asset) owned by Loan Parties on the Closing Date or (2) after such formationthe acquisition by any Loan Party of any Material Real Estate Asset (other than any Excluded Asset), acquisition or designation, cause each in the case of such Material Domestic Real Estate Assets acquired after the Closing Date, the Borrower shall cause such Loan Party to comply with the requirements set forth in clause (c) of the definition of “Collateral and Guarantee Requirement” with respect to the relevant Material Real Estate Asset; it being understood and agreed that, with respect to any Material Real Estate Asset owned by any Restricted Subsidiary that at the time such Restricted Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Loan Party under Section 8.13(b) with respect to Mortgages of any Material Real Property5.11(a), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Restricted Subsidiary on the first day on which it becomes a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.11(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, it is understood and agreed that:
(i) the Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time,
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents,
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of Capital Stock or Material Debt Instruments, in each case, to the extent included in the Collateral),
(iv) no assets Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(v) no Loan Party will be required to (A) take any action outside the U.S. to grant or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule;
(vi) in no event will the Collateral include any Excluded Asset, 127
(vii) no action shall be required to perfect any Lien with respect to (A) any vehicle or other asset subject to a certificate of title, and any retention of title, extended retention of title rights, or similar rights, (B) Letter-of-Credit Rights, (C) the Capital Stock of any Immaterial Subsidiary or (D) the Capital Stock of any Person that is not a Subsidiary which, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein is perfected by filing a Form UCC-1 financing statement (which, for the avoidance of doubt shall be the only required perfection action),
(viii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law,
(ix) any joinder or supplement to any Loan Guaranty, any Collateral Document or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.11(a) may, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty with respect to such Restricted Subsidiary set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document,
(x) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any entity that becomes a Lien granted in, those assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, in each casestamp, which were not included in intangibles or other Tax or expenses relating to such Lien) outweighs the analysis under benefit to the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation Lenders of the Borrowing Base or the Term Borrowing Basesecurity afforded thereby, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of as reasonably determined by the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory and
(xi) no Subsidiary of the Borrower shall be required to provide any guarantee, pledge or asset support agreement that, in the reasonable judgment of the Borrower in consultation with the Administrative Agent and (B) such other due diligence with respect to such assets as Agent, would subject the Administrative Agent may require in its Permitted Discretion, all Borrower or any Subsidiary of the results Borrower to any adverse tax consequence as a result of the foregoing to be satisfactory to application of Section 956 of the Administrative Agent in its Permitted DiscretionCode.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by (a) Notify the Administrative Agent to ensure at the time that the Collateral and Guarantee Requirement continues to be satisfiedany Person becomes a Wholly-Owned Domestic Subsidiary (including, including:
without limitation, (a) (xi) upon the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiary Division Successor or (in each case, other than ii) the designation of an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary that is not an Excluded Subsidiary) or any Subsidiary becoming is a Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiaryceases to be an Excluded Subsidiary after the date of this Agreement, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):and
(i) within forty-five (45) 30 days (or such greater number of days specified below) after such formation, acquisition Person becomes a Wholly-Owned Domestic Subsidiary (other than with respect to an Excluded Subsidiary) or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material is a Wholly-Owned Domestic Subsidiary that is required ceases to be an Excluded Subsidiary, cause such Wholly-Owned Domestic Subsidiary to become a Subsidiary Guarantor under the Collateral by executing and Guarantee Requirement to furnish delivering to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (Guaranty or such longer period other document as the Administrative Agent may agree in its reasonable discretionshall deem appropriate for such purpose; provided, however, that a Person that becomes a Wholly-Owned Domestic Subsidiary after the Closing Date shall not be required to be a Guarantor for so long as such Wholly-Owned Domestic Subsidiary is an Excluded Subsidiary, (ii) in in the case of Mortgages and related documents specified in Section 8.13(b)) within 30 days after such formation, acquisition Person becomes a Wholly-Owned Domestic Subsidiary (other than with respect to an Excluded Subsidiary) or designation, cause each such Material is a a Wholly-Owned Domestic Subsidiary that is required ceases to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly be an Excluded Subsidiary, execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, a Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect deeds of trust or mortgages covering any real property on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that which a Lien is required to become a Guarantor pursuant to the Collateral this Section 6.12, and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock other documents and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and instruments related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets thereto as the Administrative Agent may require in its Permitted Discretionorder to perfect such Liens, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.and
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xw) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Restricted Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Partythe Borrower or a Guarantor, (x) the designation in accordance with Section 8.3, 6.15 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic (other than an Excluded Subsidiary), (y) upon the acquisition of any material assets by the Borrower or Restricted Subsidiary that is not a Guarantor guaranteeing any Subsidiary Guarantor Specified Junior Financing Obligations or (z) with respect any Restricted Subsidiary (other than an Excluded Subsidiary) that is designated to any Subsidiary be no longer an Immaterial Subsidiary, the Borrower shall, in each case at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five as soon as reasonably practicable and in any case on or prior to thirty (4530) days (or such greater number of days specified below) after such formation, acquisition acquisition, designation or designation or, in each case, Guarantee (or such longer period as either specified in Section 6.12(b) or as the Administrative Agent may agree in its reasonable discretion:):
(A) cause each such Material Domestic Restricted Subsidiary to duly execute and deliver to the Administrative Agent a supplement to the Guaranty, Guaranteeing the Obligations of the Borrower;
(B) cause each such Restricted Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement pursuant to this Section 6.12 to furnish to the Administrative Agent a description of the any Material Real Properties Property owned by such Material Domestic Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(BC) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement this Section 6.12 to duly execute and deliver to the Administrative Agent Agent, other than with respect to Excluded Assets, (i) supplements to the Security Agreement SupplementsAgreement, Intellectual Property Security Agreements Agreements, a Perfection Certificate Supplement and other security agreements and documents Collateral Documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyother than Mortgages), as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect (or otherwise agreed) on the Restatement Effective Closing Date) or (ii) Mortgages with respect to Material Real Property and such other instruments or documents as are necessary to satisfy the other conditions of Section 4.01(b)(i) in accordance with Section 6.12(b), in each case granting Liens required by a Lien in substantially all personal property of such Restricted Subsidiary and all Material Real Property, securing the Collateral and Guarantee RequirementObligations of such Restricted Subsidiary under the Guaranty;
(CD) cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement this Section 6.12 to deliver deliver, other than with respect to Excluded Assets, any and all certificates representing Equity Interests (directly owned by such Restricted Subsidiary or, if applicable in the case of Equity Interests of Foreign Subsidiaries and, to the extent certificatedrequired by the Security Agreement, cause the legal representative(s) that are required of such Restricted Subsidiary to be pledged pursuant to register the Collateral and Guarantee Requirementtransfer of the Equity Interests in the relevant share registers of such Restricted Subsidiary, in each applicable case accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments and, to the extent required by the Security Agreement, instruments, if any, evidencing the intercompany Indebtedness debt held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral DocumentsRestricted Subsidiary, if any, indorsed in blank to the Administrative Agent;Agent or accompanied by other appropriate instruments of transfer; and
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1E) take and cause the applicable Material Domestic such Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever reasonable action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements (or comparable documents or instruments under other applicable Law), and delivery of certificates evidencing stock and membership interest certificates to the extent certificatedinterests) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Documents delivered pursuant to this Section 8.12 with respect to all Deposit Accounts6.12; and
(ii) within forty-five if requested, as soon as reasonably practicable and in any case on or prior to thirty (4530) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinioncustomary legal opinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties (or, where customary in the applicable jurisdiction, the Administrative Agent) reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.12(a) as the Administrative Agent may reasonably request; and.
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after Upon the acquisition of any Material Real Property by the Borrower or any Loan PartyGuarantor, and or if otherwise required by Section 6.12(a)(i), if such Material Real Property shall not already be subject to a perfected Lien pursuant to in favor of the Collateral and Guarantee RequirementAdministrative Agent for the benefit of the Secured Parties, the Borrower shall give notice thereof or Guarantor, as the case may be, cause such Material Real Property (other than Excluded Assets) to be subjected to a Lien securing the Administrative Agent Secured Obligations and will take, or cause the relevant Loan Party, Borrower and Guarantor to take, such actions as shall be necessary or reasonably requested by the actions referred Administrative Agent to grant and perfect or record such Lien in accordance with the conditions set forth in Section 8.13(b4.01(b)(i) within ninety (90) days of the requirement becoming applicable (or such longer period as the Administrative Agent may agree in its reasonable discretion).
(c) Notwithstanding anything Concurrently with the delivery of each Compliance Certificate pursuant to the contrary contained herein, no assets (xSection 6.02(b) in respect of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (yfinancial statements delivered pursuant to Section 6.01(a) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination execute and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all Patents (as defined in the Security Agreement) and Trademarks (Bas defined in the Security Agreement) registered or pending with the United States Patent and Trademark Office and registered or pending Copyrights (as defined in the Security Agreement) with the United States Copyright Office constituting After Acquired Intellectual Property (as defined in the Security Agreement) that is Material Intellectual Property owned by it or any Guarantor as of the last day of the period for which such other due diligence Compliance Certificate is delivered, to the extent that such After Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it or such Guarantor. In each case, the Borrower will, and will cause each Guarantor to, promptly cooperate as necessary to enable the Administrative Agent to make any necessary recordations with the US Copyright Office or the US Patent and Trademark Office, as appropriate, with respect to such assets as Material Intellectual Property.
(d) Notwithstanding the foregoing provisions of this Section 6.12 and the provisions of any Loan Document, (i) the Administrative Agent may require shall not take, and the Borrower and Guarantors shall not be required to grant, a security interest in any Excluded Assets, (ii) the Administrative Agent shall not take a security interest in any assets, including without limitation, Material Real Property, as to which the Administrative Agent shall determine in writing, in its Permitted Discretionreasonable discretion, all that the cost, burden or consequences of obtaining such Lien (including any mortgage, stamp, intangibles or other similar Tax, title insurance or similar items) is excessive in relation to the benefit to the Secured Parties of the results of the foregoing security afforded thereby, (iii) Liens required to be satisfactory granted pursuant to this Section 6.12, and actions required to be taken, including to perfect such Liens, shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date and (iv) the Borrower and the Subsidiary Guarantors shall not be required to take any actions outside the United States to perfect any Liens in the Collateral.
(e) The Borrower agrees to notify the Administrative Agent in its Permitted Discretionwriting promptly, but in any event within 30 days, after any change in (i) the legal name of any Grantor (as defined in the Security Agreement), (ii) the identity or type of organization or corporate structure of such Grantor or (iii) the jurisdiction of organization of such Grantor.
Appears in 1 contract
Samples: Credit Agreement (Quintiles Transnational Holdings Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be is satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary, but including any Subsidiary or that ceases to constitute an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 8.3 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets (including Material Real Property) by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than (1) assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien), and (2) Excluded Property (as defined in the Security Agreement)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(Bii) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Ciii) within forty-five (45) days after such formation, acquisition or designation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver (A) any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and (B) instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided that no such Material Domestic Subsidiary shall be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Div) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect ); provided that no such Material Domestic Subsidiary shall be required to all Deposit Accountsenter into any Collateral Documents or other pledge or security documents governed or purported to be governed by foreign law; and
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the written request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iivi) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee RequirementSection 8.13, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to set forth in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionMaterial Real Property.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and 110 J. Crew Term Loan Credit Agreement other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A; and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Credit Agreement (J Crew Group Inc)
Covenant to Guarantee Obligations and Give Security. At (a) Cause each of Capella University, Sophia Learning, LLC and Capella Learning Solutions, LLC to remain a Guarantor at all times, unless otherwise released from its obligations under the Borrower’s expense, subject Guaranty and the Collateral Documents pursuant to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary terms hereof or reasonably requested by thereof.
(b) Notify the Administrative Agent to ensure (i) when any Person becomes a Subsidiary and (ii) if at the time of delivery of a Compliance Certificate the Consolidated EBITDA of Foreign Subsidiaries that are not Guarantors or Pledged Foreign Subsidiaries exceeds 20% of the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition Consolidated EBITDA of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) and all its Subsidiaries with respect to any Subsidiary at the time it becomes a Loan Partymost recently ended four fiscal quarters, for any material assets held by such Subsidiary (in each casesetting forth the Foreign Subsidiaries which will become either Pledged Foreign Subsidiaries or Guarantors, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):and
(iA) within forty-five (45) 10 days thereafter (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as may be acceptable to the Administrative Agent may agree in its reasonable discretion:
(AAgent) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic real and personal property of each Subsidiary that will become either a Pledged Foreign Subsidiary or a Guarantor, in detail reasonably satisfactory to the Administrative Agent;
(B) in the case of each new Domestic Subsidiary, promptly thereafter (and in any event within forty-five (4530 days or such longer period as may be acceptable to the Administrative Agent) days cause such Subsidiary to guarantee the Secured Obligations and grant liens on its personal property to secure the Secured Obligations by executing and delivering to the Administrative a counterpart to the Guaranty (or such other document as the Administrative Agent shall reasonably deem appropriate for such purpose) and a Security Agreement;
(C) in the case of each new Foreign Subsidiary, promptly thereafter (and in any event within one hundred 30 days or such longer period as may be acceptable to the Administrative Agent) cause such Subsidiary to guarantee the Secured Obligations and eighty grant Liens on its personal property to secure the Secured Obligations, all pursuant to documents in form and substance reasonably satisfactory to the Administrative Agent, unless such Foreign Subsidiary is a “controlled foreign corporation” under Section 957 of the Code and the Borrower delivers a certificate stating that there would be material adverse consequences to the Borrower if such Foreign Subsidiary became a Guarantor;
(180D) in the case of each new Subsidiary which will become a Guarantor, promptly thereafter (and in any event within 30 days or such longer period as may be acceptable to the Administrative Agent) pledge or cause to be pledged all Equity Interests owned by any Loan Party in such Subsidiary pursuant to an updated Schedule VI to the Security Agreement to which such Loan Party is a party, and make or deliver or cause to be delivered any filings and deliveries reasonably necessary in connection therewith to perfect the Liens therein;
(E) in the case of each Foreign Subsidiary that will become either a Pledged Foreign Subsidiary or a Guarantor as specified in the notice given under clause (ii) above, promptly thereafter (and in any event within 30 days or such longer period as may be acceptable to the Administrative Agent), either (A) pledge or cause to be pledged Equity Interests owned by any Loan Party in such Subsidiary pursuant to an updated Schedule VI to the Security Agreement to which such Loan Party is a party sufficient to cause such Subsidiary to become a Pledged Foreign Subsidiary, and make or deliver or cause to be delivered any filings and deliveries reasonably necessary in connection therewith to perfect the Liens therein, or (B) cause such Subsidiary to guarantee the Secured Obligations and grant Liens on its personal property to secure the Secured Obligations, all pursuant to documents in form and substance reasonably satisfactory to the Administrative Agent;
(F) deliver to the Administrative Agent documents of the types referred to in clauses (v) and (vi) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clauses (B) through clause (E), all in form, content and scope reasonably satisfactory to the Administrative Agent; and
(G) from time to time upon reasonable request of the Administrative Agent, at the Borrower’s expense, deliver or cause to be delivered to the Administrative Agent such supplements, share certificates, stock powers, UCC filings and other documents, and take or cause to be taken such other action (including the filing of documents, and the payment of taxes and charges) as the Administrative Agent shall reasonably request
(c) Upon the request of the Administrative Agent in its sole discretion, within 90 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver be acceptable to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents Agent) of request (including, the documents listed in Section 8.13(bi) with respect to Mortgages any real property owned by a Loan Party with a fair market value in excess of any Material Real Property)the Threshold Amount, deliver such mortgages, deeds of trust, trust deeds, deeds to secure debt, other security and pledge agreements, title policies, flood insurance, surveys and engineering, soils and other environmental reports as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent with respect to such real property and (consistent ii) with respect to any Loan Party’s deposit accounts or securities accounts (other than those holding Excluded Property), use commercially reasonable efforts to deliver a control agreement among the MortgagesAdministrative Agent, Security Agreementsuch Loan Party and the bank or securities intermediary holding such accounts.
(d) In the event that Foreign Subsidiaries which are not Guarantors or Pledged Foreign Subsidiaries provide 20% or more of Consolidated EBITDA of the Borrower and all its Subsidiaries for any period of four fiscal quarters, Intellectual Property Security Agreements the Borrower shall cause one or more of such Foreign Subsidiaries to either (i) become a Pledged Foreign Subsidiary, or (ii) guarantee and other Collateral Documents in effect on grant Liens to secure the Restatement Effective Date)Secured Obligations, in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (only to the extent certificatednecessary to reduce the amount of Consolidated EBITDA contributed by Foreign Subsidiaries for such period (on a pro forma basis) that which are not Guarantors or Pledged Foreign Subsidiaries to not more than 20% of Consolidated EBITDA of the Borrower and its Subsidiaries for such period, in accordance with clause (E) of Section 6.12(b). Notwithstanding anything in this Section 6.12 or Section 6.13 to the contrary, no Loan Party shall be required to xxxxx x Xxxx on any of the following property, assets or rights (collectively, the “Excluded Property”) (i) Equity Interests in any Foreign Subsidiary other than as required to be pledged under clause (b) above, (ii) Equity Interests in any Person that is not a Subsidiary if granting a Lien on such Equity Interests would violate, or require the consent or approval of any third party pursuant to, the Organizational Documents of such Person, (iii) Equity Interests in Resource Development International (USA) Limited, Inc., so long as it maintains (x) assets not in excess of $50,000 and (y) revenues are not in excess of $50,000 for each four quarter period. (iv) any lease, license, permit or agreement or any property subject to a Lien permitted by Section 7.01(i) to the Collateral and Guarantee Requirementextent that a grant of a security interest therein would violate or invalidate such lease, accompanied by undated stock powers license, permit or agreement or violate, or require the consent or approval of any other party thereto pursuant to, the documents governing such Lien or the Indebtedness secured thereby or create a right of termination in favor of any other party thereto after giving effect to the applicable anti-assignment provisions of the UCC or other appropriate instruments applicable Law, other than proceeds and receivables thereof the assignment of transfer executed in blank (which is expressly deemed effective under the UCC or any other documents customary under local law) applicable Law notwithstanding such prohibition, provided that the Collateral shall include and instruments evidencing such security interest shall attach immediately at such time as the intercompany Indebtedness held by condition causing such Material Domestic Subsidiary violation, invalidation or right of termination or requiring such consent shall be remedied and required to be pledged pursuant to the Collateral Documentsextent severable, indorsed shall attach immediately to any portion of such lease, license, permit, agreement or property subject to a Lien permitted by Section 7.01(i) that does not result in blank to any of the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents consequences specified in Section 8.13(b)) after such formation, acquisition or designationabove, (1v) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required leasehold interests in real property, (vi) any intent-to-use trademark application prior to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and delivery solely during the period, if any, in which, the grant of stock a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law, (vii) vehicles and membership interest other goods subject to certificates of title and foreign intellectual property (other than to the extent certificatedperfection can be achieved with the filing of UCC-1 financing statements), (viii) may be necessary federal funds received from the DOE under Title IV Programs and maintained in a fiduciary capacity pursuant to 34 C.F.R. §668.163 or otherwise in trust pursuant to 34 C.F.R. §668.161, and (ix) other assets for which the cost of obtaining or perfecting a security interest exceeds the value to the Lenders, in the reasonable opinion discretion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report obtaining or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to perfecting such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)interest.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Restricted Subsidiary (in each case, other than an Unrestricted Subsidiary or which is not an Excluded Subsidiary) or at any time that a Subsidiary ceases to be an Excluded Subsidiary or the acquisition by any Loan Party, the designation in accordance with Section 8.3, Party of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes property not otherwise subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations Collateral Documents (provided that notwithstanding the foregoing, any Subsidiary of the Borrower that Guarantees any Junior Financing or any Permitted Refinancing Indebtedness of any of the foregoing shall be required to perfect be a Guarantor hereunder for so long as it Guarantees such LienIndebtedness)):, then the Borrower shall, at the Borrower’s expense:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer notice period as agreed to by the Administrative Agent may agree Agent, in its reasonable sole discretion) , in in the case of Mortgages and related documents specified in Section 8.13(b)writing) after such formationformation or acquisition, acquisition or designation, (i) cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent a Guaranty Supplement, guaranteeing the other Loan Parties’ obligations under the Loan Documents, a Security Agreement SupplementsSupplement, an Intellectual Property Security Agreements Agreement and other security and pledge agreements required under the Loan Documents securing the Loan Obligations of such Restricted Subsidiary, and documents (includingii) cause each parent of such Restricted Subsidiary which is a Loan Party to take all action necessary to cause the Equity Interests in such Restricted Subsidiary to be pledged to the Administrative Agent pursuant to such Loan Party’s Security Agreement,
(ii) within 60 days (or such longer notice period agreed to by the Administrative Agent, in its sole discretion, in writing) after the documents listed in Section 8.13(b) with respect to Mortgages formation or acquisition of such Restricted Subsidiary or after acquisition by any Loan Party of any Material Real Property), as reasonably requested by cause the Loan Party which owns such Material Real Property to duly execute and deliver to the Administrative Agent a deed of trust or mortgage thereon, in form and substance reasonably satisfactory to the Administrative Agent Agent, securing payment of all the Loan Obligations of such Loan Party (consistent each, a “Mortgage”),
(iii) within 30 days with the Mortgages, Security Agreement, Intellectual Property Security Agreements respect to Xxxxx created pursuant to clause (i) of this Section 6.12 and other Collateral Documents in effect on the Restatement Effective Date)60 days after such formation or acquisition with respect to Liens created pursuant to clause (ii) of this Section 6.12 (or, in each case granting Liens required either case, such longer notice period agreed to by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree , in its reasonable sole discretion) , in the case of Mortgages and related documents specified in Section 8.13(bwriting)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Restricted Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so) to take whatever action (including the recording of Mortgages, Mortgages and the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificatedstatements) as may be necessary in to perfect the reasonable opinion Liens created pursuant to clauses (i) and (ii) of the Administrative Agent this Section 6.12 and to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) and perfected Liens required by the Collateral and Guarantee Requirementon such property, enforceable against all third parties in accordance with their termsparties, except as such enforceability may be limited subject to the Liens permitted by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and7.01,
(iiiv) within forty-five (45) days (or within one hundred and eighty (180) 60 days (or such longer notice period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor agreed to by the Administrative Agent (or such longer period as the Administrative Agent may agree Agent, in its reasonable sole discretion), in writing) after such formation or acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such the matters set forth contained in this Section 8.11(aclauses (i), (ii) and (iii) above,
(v) prior to execution and delivery of any Mortgage in accordance with the preceding clause (ii) deliver to the Administrative Agent with respect to the applicable Material Real Property, (A) a “life of loan” standard Federal Emergency Management Agency (or any successor agency) Standard Flood loan flood hazard determination and related diligence documents as the Administrative Agent may reasonably request; request and (B) if the area in which any improvements located on any Material Real Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), (x) notices in the form required under the Flood Insurance Laws about special flood hazard area statue and flood disaster assistance duly executed by the Loan Party that owns such Material Real Property and (y) flood insurance in such total amount and otherwise on terms as the Administrative Agent may from time to time reasonably require (but in any event in compliance with the Flood Insurance Laws) and (z) otherwise comply with the Flood Insurance Laws, and
(iiivi) as promptly as practicable after upon the reasonable request therefor by of the Administrative AgentAgent in its reasonable discretion, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys surveys, engineering, soils and other reports, and environmental assessment reports reports, each in scope, form and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date substance reasonably satisfactory to the Administrative Agent; , provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts Loan Party shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentMaterial Real Property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property receipt thereof, be delivered to the Administrative Agent.
(b) Upon request by the Borrower or any Loan PartyAdministrative Agent, if an Event of Default occurs and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirementis continuing, the Borrower shall give notice thereof and the Subsidiary Guarantors will exercise any rights and remedies then available to the Administrative Agent them under any and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)all Secured Intercompany Loans.
(c) On each date on which the Borrower delivers a Compliance Certificate under Section 6.02(b) with respect to the fiscal periods ending June 30 and December 31 (“Note Delivery Dates”), the Borrower will furnish to the Administrative Agent each Secured Intercompany Note received by it from a Qualified Subsidiary since the Closing Date or the latest Note Delivery Date, as the case may be, together with an executed dated allonge with respect to each such Secured Intercompany Note; provided that if any Event of Default occurs and is continuing, upon notice from the Administrative Agent, the Borrower shall promptly deliver any and all Secured Intercompany Notes not yet furnished to the Administrative Agent. Upon the maturity of any Secured Intercompany Note, or upon any sale to any Person other than a Loan Party or refinancing which results in any Person other than a Loan Party becoming the payee of any Secured Intercompany Note pursuant to an Intercompany Loan Refinancing permitted by this Agreement, or upon any other disposition (including by distribution or assignment) permitted by this Agreement to any Person other than a Loan Party or refinancing which results in any Person other than a Loan Party becoming the payee of any Secured Intercompany Note permitted by this Agreement, the Administrative Agent will promptly upon written request of the Borrower together with such certificates as the Administrative Agent may reasonably request (i) deliver such Secured Intercompany Note to the Borrower or to any other Person to which the Borrower directs such delivery and (ii) acknowledge the release of the Administrative Agent’s Lien on such Secured Intercompany Note and any assets or Equity Interests securing such note. Notwithstanding anything to the contrary contained herein, no assets (x) of the Borrower shall not be required to furnish any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired Secured Intercompany Note received by it from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory Qualified Subsidiary to the Administrative Agent and (B) such other due diligence except in accordance with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionthis Section 6.12(c).
Appears in 1 contract
Samples: Credit Agreement (American Renal Associates Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(ai) Upon (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Material Subsidiaries by any Loan Party (including by division of any existing limited liability company pursuant to a “plan of division” under the Delaware Limited Liability Company Act) or (y) after any Person becomes a Material Subsidiary, then in each case at the Borrower’s expense:
(A) to the extent such Material Subsidiary that is not (x) a Material Domestic Subsidiary CFC or (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryy) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned a Subsidiary that is held directly or indirectly by a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic SubsidiaryCFC, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) 10 days thereafter (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period later date as the Administrative Collateral Agent may agree in its reasonable sole discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary, and cause each direct and indirect parent of such Material Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so), to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplementsa guaranty or Guaranty Supplement, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with Collateral Agent, guaranteeing the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on Loan Parties’ Obligations under the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;Loan Documents,
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(DB) within forty-five (45) 30 days (or within one hundred and eighty (180) days thereafter (or such longer period later date as the Administrative Collateral Agent may agree in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designationtake, (1) take and cause the applicable each such Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic (other than any Subsidiary that is required a CFC or a Subsidiary that is held directly or indirectly by a CFC) to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever action (including the recording of Mortgagesincluding, without limitation, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificatedstatements) may reasonably be necessary or advisable in the reasonable opinion of the Administrative Collateral Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by pledges, assignments, pledge agreement supplements and pledge agreements delivered pursuant to the Collateral and Guarantee RequirementLoan Documents, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiC) within forty-five (45) 60 days (or within one hundred and eighty (180) days thereafter (or such longer period later date as the Administrative Collateral Agent may agree in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor with respect to any such Material Subsidiary that is a “significant subsidiary” as defined by Regulation S-X promulgated by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Securities and Exchange Commission, deliver to the Administrative Agent Collateral Agent, upon the reasonable request of the Collateral Agent, a signed copy of an a favorable opinion, addressed to the Administrative Collateral Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Collateral Agent as to such (1) the matters set forth contained in this Section 8.11(a5.01(i), (2) such guaranties, Guaranty Supplements, pledges, assignments, pledge agreement supplements and other pledge agreements being legal, valid and binding obligations of each Loan Party that is a party thereto enforceable in accordance with their terms, as to the matters contained in this Section 5.01(i), (3) such recordings, filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such properties and (4) such other matters as the Administrative Collateral Agent may reasonably request; , and
(iiiD) at any time and from time to time, promptly execute and deliver, and cause each such Material Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is held directly or indirectly by a CFC), to execute and deliver, any and all further instruments and documents and take, and cause each newly acquired or newly formed Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary that is held directly or indirectly by a CFC) to take, all such other action as promptly the Collateral Agent may deem reasonably necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens created or purported to be created under the Loan Documents.
(ii) Upon the formation or acquisition of any new direct or indirect Subsidiary by any Loan Party, then in each case at the Borrower’s expense, within 30 days thereafter (or such later date as practicable after the reasonable request therefor by Collateral Agent may agree in its sole discretion), duly execute and deliver and cause such Subsidiary (to the Administrative Agent, extent that it is a Material Subsidiary) and each Loan Party acquiring Equity Interests in such Subsidiary to duly execute and deliver to the Administrative Collateral Agent with respect to each Material Real Propertypledges, title reportsassignments, surveys pledge agreement supplements and environmental assessment reports other pledge agreements as specified by, and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date form and substance reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent securing payment of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts all of the Borrower to obtain Obligations of such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on Subsidiary or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirementrespectively, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals Loan Documents; provided that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may the Equity Interests in any Subsidiary held by a CFC shall not be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent be pledged and (B) if such other due diligence with respect to such assets as the Administrative Agent may require new Equity Interests are Equity Interests in its Permitted Discretiona CFC, all only 66% of the results voting Equity Interests and 100% of the foregoing to non-voting Equity Interests of such CFC shall be satisfactory to pledged in favor of the Administrative Agent in its Permitted DiscretionSecured Parties.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) [Reserved.]
(xb) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation Party (provided that each of (i) any Subsidiary Redesignation resulting in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned an Unrestricted Subsidiary that is a Material Domestic Subsidiary as becoming a Restricted Subsidiary and (ii) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Restricted Subsidiary shall be deemed to constitute the acquisition of a Restricted Subsidiary for all purposes of this Section 6.12), or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by personal property (other than “Excluded Property,” as defined in the Borrower Security Agreement) or any Subsidiary Guarantor Material Real Property (other than any Excluded Real Property) by any Loan Party (or Material Real Property (zother than Excluded Real Property) with respect to owned by any Subsidiary at the time it that becomes a Loan PartyParty pursuant to this Section 6.12(b)), which real or personal property, in the reasonable judgment of the Administrative Agent, is not already subject to a perfected Lien in favor of the Collateral Agent for any material assets held by such Subsidiary (the benefit of the Secured Parties, then the Borrower shall, in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to case at the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) in connection with the formation or acquisition of a Restricted Subsidiary, within forty-five (45) days (or such greater number of days specified below) after such formation, formation or acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable sole discretion, (A) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement not an Excluded Subsidiary, to duly execute and deliver to the Administrative Agent and the Collateral Agent (1) a Guaranty or Guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, Guaranteeing the other Loan Parties’ obligations under the Loan Documents and (2) supplements to the Security Agreement Supplements(and, if applicable, supplements to the other Collateral Documents) with respect to the pledge of any Equity Interests or Indebtedness and any additional assets of such Restricted Subsidiary in accordance with the Security Agreement, Intellectual Property Security Agreements Agreement and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)Collateral Documents, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and the other Collateral Documents in effect on the Restatement Effective DateDocuments), in each securing payment of all the First Lien Obligations of the applicable Loan Party or such Subsidiary, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such properties, and Guarantee Requirement;
(CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to (if not already so delivered) deliver any and all certificates representing the Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, of such Restricted Subsidiary accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by Pledged Debt of such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative AgentCollateral Agent (or the Designated Senior Representative on its behalf); provided, that only 65% of the voting Equity Interests of any Foreign Subsidiary (or any CFC Holdco) shall be required to be pledged as Collateral and no such restriction shall apply to non-voting Equity Interests of such Subsidiaries; provided, further, that, (x) notwithstanding anything to the contrary in this Agreement, no assets of any Foreign Subsidiary (including Equity Interests owned by such Foreign Subsidiary in a Domestic Subsidiary) shall be required to be pledged as Collateral and (y) no Loan Party will transfer or permit a transfer of a Domestic Subsidiary to a Foreign Subsidiary;
(Dii) within forty-five thirty (4530) days (after such formation or within one hundred and eighty (180) days (acquisition, or such longer period as the Administrative Agent may agree in its reasonable sole discretion, furnish to the Administrative Agent and the Collateral Agent a description of the real and personal properties of the Loan Parties and their respective Subsidiaries (other than Excluded Subsidiaries) in detail reasonably satisfactory to the case of Administrative Agent and the Collateral Agent;
(iii) within ninety (90) days after such formation or acquisition, or such longer period as the Administrative Agent may agree in its sole discretion, duly execute and deliver, and cause each such Subsidiary that is not an Excluded Subsidiary to duly execute and deliver, to the Administrative Agent and the Collateral Agent Mortgages (with respect to Material Real Properties that are not Excluded Real Properties) and related other agreements, documents and instruments specified in Section 8.13(b4.01(g) and 6.14(b) in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Security Agreement and Mortgages), securing payment of all the Second Lien Obligations of the applicable Loan Party or such Subsidiary, as the case may be, under the Loan Documents and constituting Liens on all such properties;
(iv) within forty-five(45) days (or ninety (90) days, if such requirements relate to Mortgages) after such formationformation or acquisition, acquisition or designationsuch longer period as the Administrative Agent may agree in its sole discretion, (1) take take, and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic such Restricted Subsidiary that is required not an Excluded Subsidiary to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever additional action (including including, without limitation, the recording of MortgagesMortgages (with respect to Material Real Properties that are not Excluded Real Properties), the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and the endorsement of notices on title documents and delivery of stock and membership interest certificates to the extent certificatedcertificates) as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and subsisting Liens (subject to the Intercreditor Agreement) perfected Liens extent required by the Collateral Documents) on the rights and Guarantee Requirementproperties purported to be subject to the Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and;
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iiiv) as promptly as practicable after the reasonable request therefor by of the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property (that is not an Excluded Real Property, title reports, surveys and environmental assessment reports and appraisals ) (if required under FIRREA), flood certifications under Regulation H but in any event on or before the delivery of the Federal Reserve Boardapplicable Mortgage delivered pursuant to this Section 6.12(b) (and, provided in the case of Flood Documents, three (3) Business Days before the delivery of such Mortgage)) owned in fee by a Loan Party that is the Administrative Agent may subject of such request, the documents and instruments specified in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date Section 6.14(b) in scope, form and substance reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation and Flood Documents with respect to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtainedMaterial Real Property; and
(ivi) the Borrower shall obtain the security interests at any time and Guarantees set forth on Schedule 1.1A on or prior from time to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Datetime, promptly after the acquisition of execute and deliver any Material Real Property by the Borrower or any Loan Party, and all further instruments and documents and take all such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to other action as the Administrative Agent and will takeor the Collateral Agent in its reasonable judgment may deem necessary or desirable in obtaining the full benefits of, or cause in perfecting and preserving the relevant Loan PartyLiens of, to takesuch Guaranties, the actions referred to in Section 8.13(b)Mortgages, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral Documents.
(c) Notwithstanding anything the foregoing, the Collateral Agent shall not take a security interest in those assets as to which the Administrative Agent shall determine, in its reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the contrary contained hereinbenefit to the Lenders of the security afforded thereby.
(d) For the avoidance of doubt, no assets (x) changes in organization of any entity that becomes a Loan Party or any of its Restricted Subsidiaries (such as a result conversion of a Permitted Acquisition corporation into a limited liability company) shall not constitute a formation or acquisition of a Restricted Subsidiary; provided that within ten (y10) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal days (or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, such longer period as may be reasonably required agreed to by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsole discretion) such converted entity shall deliver such instruments and documents (including Uniform Commercial Code financing statements and affirmation of its obligations under the Loan Documents) and take all such other action as the Administrative Agent or the Collateral Agent may deem necessary or desirable in preserving the continuing validity and perfection of the Collateral Agent’s Lien on the Collateral owned by (or, in the case of Equity Interests of such Person included in the Collateral, issued by) such Person.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject Subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingIntercreditor Agreement:
(a) Upon the formation or acquisition of any Material Subsidiary (xother than any Permitted Receivables Financing Subsidiary so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) upon by any Loan Party, pledge such Loan Party’s equity interest in such entity; provided that such pledge shall be limited to 66% of voting Equity Interests with respect to any Foreign Subsidiary.
(b) Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (other than Permitted Receivables Financing Subsidiaries and Immaterial Subsidiaries, in each case, case so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) by any Loan Party or upon the acquisition of any personal property (other than an Unrestricted Subsidiary “Excluded Property” as defined in the Security Agreement) or an Excluded Subsidiary) any Material Real Property by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by then the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five (45) 15 days after such formation or acquisition (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree agree), cause such Domestic Subsidiary, and cause each direct and indirect parent of such Domestic Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 15 days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under formation or acquisition (or such longer period as the Collateral and Guarantee Requirement to Administrative Agent may agree), furnish to the Administrative Agent a description of the Material Real Properties owned by Property and personal properties of such Material Domestic Subsidiary or such other personal property and Material Real Property, in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(bagree)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement each direct and indirect parent of such Domestic Subsidiary and each other respective Loan Party (if it has not already done so) to duly execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, Intellectual Property IP Security Agreements Agreement Supplements, amendment to the Loan Documents and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)pledge agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with including such instruments of the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents type specified in effect on the Restatement Effective DateSection 4.01(a)(iii)), in each securing payment of all the Obligations of such Domestic Subsidiary, such parent or such Loan Party, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such real and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary personal properties, provided, that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing only 66% of voting Equity Interests (to the extent certificated) that are of any Foreign Subsidiary shall be required to be pledged pursuant as Collateral; provided, further, that notwithstanding anything to the Collateral and Guarantee Requirementcontrary in any Loan Document, accompanied no assets owned by undated stock powers any Foreign Subsidiary or other appropriate instruments of transfer executed Equity Interests in blank (any Permitted Receivables Financing Subsidiary or assets owned by any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Permitted Receivables Financing Subsidiary and shall be required to be pledged pursuant to as Collateral (so long as such Equity Interests or assets shall not constitute collateral under the Collateral ABL Loan Documents, indorsed in blank to the Administrative Agent;),
(Div) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(bagree)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral (if it has not already done so) and Guarantee Requirement each other respective Loan Party to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, IP Security Agreement Supplements, amendments to the Collateral Loan Documents and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) 60 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretionagree), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an opinionone or more favorable opinions, addressed to the Administrative Agent Agent, on behalf of itself, and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; , and
(iiivi) as promptly as practicable after such formation or acquisition, deliver, upon the reasonable request therefor by of the Administrative AgentAgent in its sole discretion, deliver to the Administrative Agent with respect to each parcel of Material Real Property, Property owned by the entity that is the subject of such formation or acquisition title reports, surveys and Phase I environmental assessment reports and appraisals (if required under FIRREA)reports, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)Agent.
(c) Notwithstanding anything to the contrary contained hereinforegoing, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, shall not take a security interest in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, those assets as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to which the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require shall determine, in its Permitted Discretionreasonable discretion, all that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the benefit to the Lenders of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsecurity afforded thereby.
Appears in 1 contract
Samples: Term B Loan Credit Agreement (Remy International, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary or the designation of any Unrestricted Subsidiary as a Subsidiary that is a Material Domestic not an Unrestricted Subsidiary pursuant to Section 6.15 (in each case, case other than an Unrestricted (x) any CFC or a Subsidiary that is held directly or indirectly by a CFC, (y) any Subsidiary that is prohibited by applicable Law from guaranteeing the Obligations and/or providing any security therefor without the consent of a PUC, the FCC or any other Governmental Authority having jurisdiction over such Subsidiary or an Excluded is subject to regulatory approvals or regulatory restrictions on borrowings or issuances of guaranties of indebtedness for borrowed money or the granting of Liens on its assets or Equity Interests or (z) any Subsidiary other than a Material Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by then the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five (45) 30 days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as may be agreed to by the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(bAgent)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplementsa guaranty or guaranty supplement, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with Agent, guaranteeing the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on Loan Parties’ obligations under the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;Loan Documents,
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(Dii) within forty-five (45) 30 days (after such formation, acquisition or within one hundred and eighty (180) days designation (or such longer period as may be agreed to by the Administrative Agent), furnish to the Administrative Agent may agree in its reasonable discretionthe information required by Schedules 5.08 and 5.17 with respect to such Subsidiary,
(iii) in the case of Mortgages and related documents specified in Section 8.13(b)) within 30 days after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days designation (or such longer period as may be agreed to by the Administrative Agent), cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent may agree joinders or supplements to the Security Agreement and Pledge Agreement (including delivery of all Pledged Securities (as defined in its reasonable discretionthe Pledge Agreement) in and of such Subsidiary, and other instruments of the case of Mortgages and related documents type specified in Section 8.13(b4.01(a)(iii)), securing payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such real and personal properties constituting Collateral, and
(iv) within 60 days after the request therefor by the Administrative Agent such formation, acquisition or designation (or such longer period as may be agreed to by the Administrative Agent may agree in its reasonable discretionAgent), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i) and (iii) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Security Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingBorrower shall:
(a) upon, after the Third Amendment Effective Date, (x1) upon the formation or acquisition of any new direct or indirect Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (2) the designation in accordance with Section 8.3, 5.13 of any existing direct or indirect Wholly-Owned wholly owned domestic Unrestricted Subsidiary that is of a Material Domestic Subsidiary Loan Party as a Restricted Subsidiary or (3) any Domestic Subsidiary becoming a Wholly-Wholly Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, with respect to clauses (1), (2) and (3), other than assets constituting Collateral under (x) an Unrestricted Subsidiary or (y) a Collateral Document newly acquired Subsidiary whose Indebtedness outstanding at the time of its acquisition would restrict the ability of such Subsidiary to become a Subsidiary Guarantor or require that becomes subject a Lien securing other Indebtedness also secure any outstanding Indebtedness of such newly acquired Subsidiary, as designated in writing and delivered to the Lien created by such Administrative Agent and Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Agent:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Wholly Owned Domestic Subsidiary that is required (a “New Subsidiary Guarantor”) to become execute a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish counterpart to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative AgentGuarantee and Collateral Agreement;
(B) cause the security interests granted by such New Subsidiary Guarantor pursuant to the Guarantee and Collateral Agreement to be perfected to the extent required by the Guarantee and Collateral Agreement;
(ii) within forty-five ninety (4590) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in in discretion deliver to the case of Mortgages and related documents specified in Section 8.13(b)) after Collateral Agent, to the extent such formation, acquisition or designation, cause each such Material Domestic designation occurs after the Third Amendment Effective Date:
(A) an Additional Mortgage duly executed and acknowledged by the New Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any each Material Real Property)Property owned or leased by such New Subsidiary Guarantor, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as reasonably requested by and shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent;
(consistent B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with the Mortgagesrespect to each such Mortgaged Property to be subject to an Additional Mortgage on which a “Building” (as defined in 12 CFR Chapter III, Security Agreement, Intellectual Property Security Agreements Section 339.2) is located (together with a notice about special flood hazard area status and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required flood disaster assistance duly executed by the Collateral Borrower and Guarantee Requirementeach Loan Party relating thereto);
(C) cause a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (except that, with respect to flood insurance, the Collateral Agent must have received a copy of the insurance policies) and the applicable provisions of the Security Documents, each such Material Domestic Subsidiary of which shall (1) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable); (2) name the Collateral Agent, on behalf of the Secured Parties, as additional insured; (3) in the case of flood insurance, (x) identify the addresses of each property located in a special flood hazard area, (y) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (z) provide that is required to become a Guarantor pursuant the insurer will give the Collateral Agent forty-five (45) days’ written notice of cancellation or non-renewal and (4) otherwise be in form and substance satisfactory to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(E) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(b) within ninety (90) days after the acquisition by any Loan Party of any Material Real Property owned by such Loan Party, to the extent acquired after the Fourth Amendment Effective Date,
(i) an Additional Mortgage duly executed and acknowledged by such Loan Party with respect to each Material Real Property owned or leased by such Loan Party, and in form for recording in the recording office where such Mortgaged Property is located, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Collateral Agent;
(ii) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such Mortgaged Property on which a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto);
(iii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 5.02 of this Agreement (except that, with respect to flood insurance, the Collateral Agent must have received a copy of the insurance policies) and the applicable provisions of the Security Documents, each of which shall (1) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable); (2) name the Collateral Agent, on behalf of the Secured Parties, as additional insured; (3) in the case of flood insurance, (x) identify the addresses of each property located in a special flood hazard area, (y) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (z) provide that the insurer will give the Collateral Agent forty-five (45) days days’ written notice of cancellation or non-renewal and (or within one 4) otherwise be in form and substance satisfactory to the Collateral Agent;
(iv) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all search and examination charges, mortgage recording taxes and related charges required for the recording of such Additional Mortgages; and
(v) an opinion of local counsel in form and substance reasonably satisfactory to the Collateral Agent and such other documents, instruments, certificates and materials to the extent reasonably requested by the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(c) Within one-hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent date hereof (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy Borrower shall comply with the requirements of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a5.10(b) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (Xxxxxx Principal Property as if required under FIRREA), flood certifications under Regulation H of it had been acquired on the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey date hereof. Notwithstanding anything to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; providedcontrary herein, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i1) the Borrower and its subsidiaries shall obtain the not be required to grant a security interests and Guarantees set forth on Schedule 1.1A on interest in any (A) Excluded Assets or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iiB) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property or other property held by the Borrower or any Loan Party, and such Material of its Restricted Subsidiaries as a lessee under a lease if the Collateral Agent determines (in its reasonable discretion) that the Real Property shall not already be or other property subject to a perfected Lien pursuant such lease is not material to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, business or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense operations of the Borrower and its subsidiaries, taken as a whole, and (without regard to2) if, and for so long as, the creation or counting againstperfection of pledges of or security interests in particular assets, any limitations on expense reimbursement in the reasonable judgment of the Collateral Agent and the Borrower, the cost of creating or perfecting such pledges or security interests in such assets shall be excessive in view of the number of Field Examinations or Inventory appraisals that may benefits to be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required obtained by the Administrative AgentLenders therefrom, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to need not be satisfactory to the Administrative Agent in its Permitted Discretionpledged.
Appears in 1 contract
Samples: Amendment Agreement (Alpha Natural Resources, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) Upon (x) the Borrower’s expense, subject to the provisions request of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that following the Collateral occurrence and Guarantee Requirement continues during the continuance of a Specified Default or (y) (i) the delivery of the report (the “Report”) required to be satisfied, including:
(adelivered pursuant to Section 6.02(i) (x) upon indicating the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary), (ii) the delivery of a Compliance Certificate indicating that a Domestic Subsidiary previously determined to be an Immaterial Subsidiary or an Excluded Subsidiary is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, or (iii) the acquisition of any property by any Loan Party, and such property, in the designation judgment of the Administrative Agent, shall not already be subject to a perfected first priority security interest subject to Specified Statutory Liens in accordance favor of the Administrative Agent for the benefit of the Secured Parties, unless expressly excluded from being required to be the subject of such security interest by the terms of this Agreement or the terms of the Collateral Documents, then the Borrower shall, in each case at the Borrower’s expense:
(i) in connection with Section 8.3, the formation or acquisition of any existing direct or indirect Wholly-Owned a Domestic Subsidiary that is a Material Subsidiary (other than an Excluded Subsidiary) or the determination that any Domestic Subsidiary as a Restricted previously determined to be an Immaterial Subsidiary or any an Excluded Subsidiary becoming a Wholly-Owned is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, within 10 Business Days after the delivery of the Report, cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any a Domestic Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such and not an Excluded Subsidiary (in each caseif it has not already done so), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations duly execute and deliver to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 5 Business Days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under request or after the Collateral and Guarantee Requirement to delivery of the Report or such Compliance Certificate, furnish to the Administrative Agent a description of the Material Real Properties owned real properties having a purchase price (or in the case of a Specified Default, fair market value) of $10,000,000 or more and, in the case of a Specified Default, other properties of the Loan Parties and their respective Subsidiaries so acquired or upon which the Administrative Agent does not have a valid, perfected Lien, unless expressly excluded from being required to be the subject of such security interest by such Material Domestic Subsidiary the terms of this Agreement or the terms of the Collateral Documents, in each case in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) days (10 Business Days after such request or within one hundred and eighty (180) days (after the delivery of the Report or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages Compliance Certificate, duly execute and related documents specified in Section 8.13(b)) after such formationdeliver, acquisition or designation, and cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement new Loan Party to duly execute and deliver deliver, to the Administrative Agent mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgagesincluding delivery of all Pledged Equity in and of such Subsidiary, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents type specified in Section 8.13(b4.02(a)(iii)) after such formation), acquisition or designation, (1) take and cause securing payment of all the applicable Material Domestic Subsidiary and each direct or indirect parent Obligations of the applicable Material Domestic Subsidiary that is required Loan Party under the Loan Documents and constituting Liens on all such properties,
(iv) within 10 Business Days after such request or after the delivery of the Report or such Compliance Certificate, take, and cause such new Loan Party to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and the endorsement of notices on title documents, the delivery of stock and membership interest certificates to the extent certificatedflood zone determinations and/or flood insurance (as applicable)) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements and Guarantee Requirementsecurity agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) days (10 Business Days after such request or within one hundred and eighty (180) days (after the delivery of the Report or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Compliance Certificate, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, as to such mortgages, deeds of trust and trust deeds being legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms, as to the matters set forth contained in this Section 8.11(aclause (iv) above, as to such recordings, filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such mortgaged properties, and as to such other matters as the Administrative Agent may reasonably request; and,
(iiivi) as promptly as practicable after such request or after the reasonable delivery of the Report or such Compliance Certificate, deliver, upon the request therefor by of the Administrative AgentAgent in its reasonable discretion, deliver to the Administrative Agent with respect to each Material Real Propertyparcel of real property acquired for $10,000,000 or more (except that no minimum amount shall apply in the case of a Specified Default) owned by the entity that is the subject of such request, formation or acquisition title reportspolicies, surveys and environmental assessment reports reports, each in scope and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date form reasonably satisfactory to the Administrative Agent; , provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent, and
(vii) promptly execute and deliver any and all further instruments and documents and take all such other actions as required by the Security Agreement and at any time and from time to time as the Administrative Agent and will takemay deem necessary or desirable in obtaining the full benefits of, or cause in perfecting and preserving the relevant Liens of, such guaranties, mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements and security agreements.
(b) Any Subsidiary or Excluded Joint Venture that is not a Guarantor that becomes a guarantor with respect to any Material Debt of any Loan Party shall comply with Section 6.12(a) as if it were a newly formed Domestic Subsidiary of a Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding the foregoing or anything to the contrary else contained hereinin this Agreement or any other Loan Document, no assets unless (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition Specified Default has occurred and is continuing or (y) acquired from a third party by a Loan Party outside has acquired material Intellectual Property during the ordinary course of businessperiod covered by the applicable Report, in each caseno event shall the Borrower or any of its Subsidiaries be required after the Closing Date to execute, which were not included prepare, deliver or otherwise provide any IP Security Agreement Supplements (whether in connection with the formation or acquisition of any new direct or indirect Domestic Subsidiary or the acquisition or creation of any property by any Loan Party) or take any similar or other further action in respect of any Intellectual Property (as defined in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionSecurity Agreement).
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be is satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary, but including any Subsidiary or that ceases to constitute an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 8.3 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets (including Material Real Propertyfee-owned real property) by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than (1) assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien), and (2) Excluded Property (as defined in the Security Agreement)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to furnish to the Collateral Agent a description of the Material Real Propertiesfee-owned real properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Collateral Agent;
(ii) in in the case of Mortgages and related documents specified in Section 8.13(b)within forty-five (45) days after such formation, acquisition or designationdesignation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Collateral Agent, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Ciii) within forty-five (45) days after such formation, acquisition or designation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver (A) any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and (B) instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided that no such Material Domestic Subsidiary shall be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Div) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect ); provided that no such Material Domestic Subsidiary shall be required to all Deposit Accountsenter into any Collateral Documents or other pledge or security documents governed or purported to be governed by foreign law; and
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the written request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iivi) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property Propertyfee-owned real property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property Propertyfee-owned real property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee RequirementSection 8.13, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to set forth in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionMaterial Real Propertyfee-owned real property.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary ceasing to be an Excluded Subsidiary, (y) upon the within 90 days of formation or acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may reasonably agree in its reasonable sole discretion), (A) cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in in clause (a) of the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary to duly execute and deliver to the Administrative Agent Security Agreement Supplementsa signed copy of a customary opinion of counsel for such Restricted Subsidiary, Intellectual Property Security Agreements addressed to the Administrative Agent and other security agreements and documents the Lenders.
(including, b) Within 120 days after the documents listed in Section 8.13(b) with respect to Mortgages acquisition by any Loan Party of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and Estate Asset other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver than any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days Excluded Asset (or such longer period as the Administrative Agent may reasonably agree in its reasonable sole discretion), the Borrower shall cause such Loan Party to comply with the requirements set forth in clause (b) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect to any Material Domestic Real Estate Asset owned by any Restricted Subsidiary that at the time such Restricted Subsidiary is required to become a Guarantor pursuant Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to have been acquired by such Restricted Subsidiary on the Collateral and Guarantee Requirement first day of the time period within which such Restricted Subsidiary is required to take whatever action (including become a Loan Party under Section 5.12(a). Notwithstanding the recording of Mortgagesforegoing, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent shall not enter into any Mortgage in respect of any Material Real Estate Asset acquired by any Loan Party after the Closing Date pursuant to vest in this Section 5.12 until (1) the date that occurs 45 days after the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject has delivered to the Intercreditor AgreementLenders (which may be delivered electronically) perfected Liens required the following documents in respect of such Material Real Estate Asset: (i) a completed Flood Determination Form from a third party vendor, (ii) if such Material Real Estate Asset is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the Collateral applicable Loan Party of such notice, and Guarantee Requirement(iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Material Real Estate Asset is located, enforceable against all third parties in accordance with their termsevidence of flood insurance, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in shall have received written confirmation from the case of Mortgages Arrangers that flood insurance due diligence and related documents specified in Section 8.13(b)) after the request therefor flood insurance compliance have been completed by the Administrative Agent Arrangers (such written confirmation not to be unreasonably conditioned, withheld or such longer period as the Administrative Agent may agree in its reasonable discretiondelayed), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept enter into any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or Mortgage prior to the dates corresponding notice period specified above upon receipt of the written confirmation described in clause (2) above and provided further that the Loan Parties’ obligations under this Section 5.12(b) to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition grant a Mortgage of any Material Real Property by Estate Asset within the Borrower or any Loan Party, and such Material Real Property 120-day time period described herein shall not already be subject extended for so long as is required to a perfected Lien pursuant to ensure compliance with the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
requirements of clause (c2) above. Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition herein or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower other Loan Document, (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4i) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require grant extensions of time for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in its Permitted Discretionconnection with assets acquired, all or Restricted Subsidiaries formed or acquired, after the Closing Date) where it reasonably determines, in consultation with the Borrower, that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents, and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of pledged Capital Stock and/or Material Debt Instruments), (iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement; (v) no Loan Party will be required to (1) take any action or grant or perfect any security interest in any asset located outside of the results U.S. or (2) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge; (vi) in no event will the Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a certificate of title, and any retention of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit Rights to the foregoing to extent that a security interest therein cannot be satisfactory to perfected by filing a Form UCC-1 (or similar) financing statement and (viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is excessive in its Permitted Discretionrelation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject Subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingIntercreditor Agreement:
(a) Upon the formation or acquisition of any Material Subsidiary (xother than any Permitted Receivables Financing Subsidiary) upon by any Loan Party, pledge such Loan Party’s equity interest in such entity; provided that such pledge shall be limited to 66% of voting Equity Interests with respect to any Foreign Subsidiary.
(b) Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary Permitted Receivables Financing Subsidiaries and Immaterial Subsidiaries) by any Loan Party or an upon the acquisition of any personal property (other than “Excluded SubsidiaryProperty” as defined in the Security Agreement) or any Material Real Property by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by then the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five (45) 15 days after such formation or acquisition (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree agree), cause such Domestic Subsidiary, and cause each direct and indirect parent of such Domestic Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 15 days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under formation or acquisition (or such longer period as the Collateral and Guarantee Requirement to Administrative Agent may agree), furnish to the Administrative Agent a description of the Material Real Properties owned by Property and personal properties of such Material Domestic Subsidiary or such other personal property and Material Real Property, in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(bagree)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement each direct and indirect parent of such Domestic Subsidiary and each other respective Loan Party (if it has not already done so) to duly execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, Intellectual Property IP Security Agreements Agreement Supplements, amendment to the Loan Documents and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)pledge agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with including such instruments of the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents type specified in effect on the Restatement Effective DateSection 4.01(a)(iii)), in each securing payment of all the Obligations of such Domestic Subsidiary, such parent or such Loan Party, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such real and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary personal properties, provided, that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing only 66% of voting Equity Interests (to the extent certificated) that are of any Foreign Subsidiary shall be required to be pledged pursuant as Collateral; provided, further, that notwithstanding anything to the Collateral and Guarantee Requirementcontrary in any Loan Document, accompanied no assets owned by undated stock powers any Foreign Subsidiary or other appropriate instruments of transfer executed Equity Interests in blank (any Permitted Receivables Financing Subsidiary or assets owned by any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Permitted Receivables Financing Subsidiary and shall be required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;as Collateral,
(Div) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(bagree)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral (if it has not already done so) and Guarantee Requirement each other respective Loan Party to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, IP Security Agreement Supplements, amendments to the Collateral Loan Documents and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) 60 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretionagree), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an opinionone or more favorable opinions, addressed to the Administrative Agent Agent, on behalf of itself, and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; , and
(iiivi) as promptly as practicable after such formation or acquisition, deliver, upon the reasonable request therefor by of the Administrative AgentAgent in its sole discretion, deliver to the Administrative Agent with respect to each parcel of Material Real Property, Property owned by the entity that is the subject of such formation or acquisition title reports, surveys and Phase I environmental assessment reports and appraisals (if required under FIRREA)reports, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)Agent.
(c) Notwithstanding anything to the contrary contained hereinforegoing, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, shall not take a security interest in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, those assets as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to which the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require shall determine, in its Permitted Discretionreasonable discretion, all that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the benefit to the Lenders of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsecurity afforded thereby.
Appears in 1 contract
Samples: Term B Loan Credit Agreement (Remy International, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) including (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct Party or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or upon any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (other than an Excluded Subsidiary), (y) upon any Excluded Subsidiary ceasing to be an Excluded Subsidiary, or upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each casecase under the foregoing clauses (y) or (z), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(ia) (a) within forty-five (45) days (or such greater number of days specified belowlonger period as the Collateral Agent may agree in its sole discretion) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(Ai) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to a joinder or amendment to the Guaranty in form and substance reasonably satisfactory to the Administrative Agent;
(ii) cause each such Material Domestic Subsidiary Guarantor under the Collateral and Guarantee Requirement to promptly furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(Biii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements Agreement and other Collateral Documents in effect on the Restatement Effective Date), in each case case, granting Liens required by the Collateral and Guarantee Requirement; provided none of the Borrower or any of its Subsidiaries shall not be required to enter into any security agreements governed by foreign law;
(Civ) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest cause the Liens or security interests created by the Collateral Documents in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) be duly perfected Liens as required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 8.11 with respect to all Deposit Accounts; and;
(iivi) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinionopinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a8.10(a) as the Administrative Agent may reasonably request; and;
(b) in the case of any Material Real Property, provide the Collateral Agent with (x) prompt notice thereof and (y) Mortgages with respect to such owned real property in form and substance reasonably satisfactory to the Collateral Agent (consistent with the Mortgages in effect on the date thereof) within ninety (90) days (or such longer period as the Collateral Agent may agree in its sole discretion) of the acquisition of, or, if requested by the Collateral Agent, entry into, or renewal of, a ground lease in respect of, such real property in each case together with:
(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording Taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements available in the applicable jurisdiction and in amount, reasonably acceptable to the Collateral Agent (not to exceed the value of the real properties covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, subject only to Liens permitted by Section 9.1, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably request and is available in the applicable jurisdiction;
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Boardreports, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained;
(iv) opinions of local counsel for the Loan Parties in states in which the real properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(v) such other evidence that all other actions that the Administrative Agent or Collateral Agent may reasonably deem necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages has been taken; and
(i) at any time any books and records of the Borrower shall obtain and its Subsidiaries are located on any real property of a Loan Party (whether such real property is now existing or acquired after the security interests and Guarantees set forth Effective Date) which is not owned by a Loan Party, or is stored on Schedule 1.1A on the premises of a bailee, warehouseman, or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; similar party, and (ii) after if the Restatement Effective Date, promptly after the acquisition of any Material Real Property Borrower’s headquarter is not owned by the Borrower or any Loan Party, and such Material Real Property shall not already be subject use commercially reasonable efforts to a perfected Lien pursuant to obtain written landlord waivers or collateral access agreements, as the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businesscase may be, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination form and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably substance satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Samples: Credit Agreement (eHealth, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary) becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic SubsidiarySubsidiary of the Borrower, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)) but excluding Excluded Assets):
(ia) within forty-five (45) days (or such greater number of the days specified below) below after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days Guaranty (or within one hundred and eighty (180a joinder thereto) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as documentation the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after request from time to time in order to carry out more effectively the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H purposes of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests Guaranty and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.Documents and
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary of the Partnership (in each case, other than an Unrestricted any Excluded Subsidiary), and upon any Excluded Subsidiary or of the Partnership ceasing to be an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3Borrowers shall, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrowers’ expense:
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period as the Administrative Agent may agree determine in its reasonable sole discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition formation or designationacquisition, cause such Subsidiary, and cause each direct and indirect parent of such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so), to duly execute and deliver to the Administrative Agent a Joinder Agreement,
(ii) within 30 days (or such longer period as the Administrative Agent may determine in its sole discretion) after such formation or acquisition, cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Collateral Agent, with a copy to the Administrative Agent, Security Agreement Supplements, Intellectual Property Pledge Agreement Supplements, IP Security Agreements Agreement Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)pledge agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgagesincluding delivery of all Pledged Equity in and of such Subsidiary, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens instruments required by the Collateral Security Agreement or the Pledge Agreement), securing payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and Guarantee Requirement;constituting Liens on all such personal properties,
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(Diii) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period as the Administrative Agent may agree determine in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formationformation or acquisition, acquisition cause such Subsidiary to deliver to the Administrative Agent such certificates of resolutions or designationother action, incumbency certificates and/or other certificates of Responsible Officers of such Subsidiary or its general partner acting on its behalf as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Subsidiary is a party or is to be a party;
(1iv) take and within 30 days (or such longer period as the Administrative Agent may determine in its sole discretion) after such formation or acquisition, cause the applicable Material Domestic such Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so) to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificatedstatements) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (valid, subsisting and perfected Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral Security Agreement Supplements, Pledge Agreement Supplements, IP Security Agreement Supplements and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may provided, that (A) perfection shall not be limited by Debtor Relief Laws required in the case of any vehicles and by general principles other assets subject to certificates of equity title, (regardless of whether enforcement is sought in equity B) “control” agreements shall not be required for any deposit, securities or at law) commodities accounts and (2C) comply with perfection shall not be required in the requirements case of Section 8.12 any letter of credit rights (except, in the case of this clause (C), to the extent perfected by the filing of Uniform Commercial Code financing statements), and
(v) with respect to all Deposit Accounts; and
(i) any Restricted Subsidiary with total assets in excess of 5% of the total assets of the Partnership and its Restricted Subsidiaries and (ii) any other Restricted Subsidiary if such Restricted Subsidiary, together with other Restricted Subsidiaries with respect to which legal opinions have not been delivered in reliance on this exclusion hold total assets in excess of 10% of total assets of the Borrowers and their Restricted Subsidiaries (in each case, determined in accordance with GAAP and after giving effect to such acquisition or such Restricted Subsidiary ceasing to be an Excluded Subsidiary): within forty-five (45) days (or within one hundred and eighty (180) 60 days (or such longer period as the Administrative Agent may agree determine in its reasonable sole discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (such formation or such longer period as the Administrative Agent may agree in its reasonable discretion)acquisition, deliver to the Collateral Agent and the Administrative Agent, upon the request of the Administrative Agent in its sole but reasonable discretion, a signed copy of an a favorable opinion, addressed to the Collateral Agent, the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i) and (ii) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and.
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)[Reserved].
(c) Notwithstanding anything [Reserved].
(d) Upon the formation or acquisition by either Borrower or any Restricted Subsidiary after the Closing Date of any Restricted Subsidiary that is a CFC or FSHCO, the Borrowers shall notify the Administrative Agent, with a copy to the contrary contained hereinCollateral Agent, thereof within 30 days after such acquisition or formation and promptly (A) execute and deliver to the Collateral Agent, with a copy to the Administrative Agent such Security Agreement Supplements, Pledge Agreement Supplements, or such other documents as the Administrative Agent deems necessary or reasonably desirable and requests in order to grant to the Collateral Agent a perfected first priority security interest (subject only to applicable Liens permitted under any Loan Document) in the Equity Interests of such CFC or FSHCO that is owned by the applicable Loan Party (provided that in no assets event shall (x) more than 65% of the total voting power (within the meaning of United States Treasury Regulations Section 1.956-2(c)) of the total outstanding Equity Interests of any entity such CFC or FSHCO be required to be so pledged and (y) any Excluded Assets be subject to this clause (d)), and (B) deliver to the Collateral Agent the certificates (if any) representing such Equity Interests (other than Excluded Assets), together with undated stock powers or share transfer forms, in blank, executed and delivered by a duly authorized officer of the applicable Loan Party, and take such other action as may be necessary or reasonably requested by the Administrative Agent to perfect the Lien of the Collateral Agent thereon, and (C) take such other actions as necessary under applicable law (including foreign law) or reasonably requested by the Administrative Agent to ensure the granting, perfection, and priority of such security interest.
(e) Notwithstanding the foregoing, if at any time all Immaterial Subsidiaries, taken as a whole, (i) have total assets at such time exceeding 10% of the total assets of the Borrowers and their Restricted Subsidiaries, determined in accordance with GAAP or (ii) generate more than 10% of Consolidated EBITDA for the most recently completed four fiscal quarter period, in either case as of the fiscal quarter most recently ended and for which financial statements have been delivered pursuant to Section 6.01(a) or 6.01(b), then the Borrowers shall designate which of such Subsidiaries shall no longer constitute “Immaterial Subsidiaries” for purposes of this Agreement to the extent necessary to cause such excess to be eliminated and, with respect to any Subsidiary that becomes a Loan Party ceases to be an Immaterial Subsidiary as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside such designation, the ordinary course of businessBorrowers shall take, and cause such Subsidiary to take, such action as is necessary to comply with this Section 6.12. The Borrowers may re-designate Immaterial Subsidiaries as Material Subsidiaries so long as Borrowers are in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence compliance with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionand no Default or Event of Default exists or would exist as a result therefrom.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
Upon (ai) (x) upon the formation or acquisition after the ClosingAmendment No. 2 Effective Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary), (ii) by any Loan Partywith respect to Canadian Obligations, the designation in accordance with Section 8.3, formation or acquisition after the ClosingAmendment No. 2 Effective Date of any existing direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Canadian Subsidiary of an existing Canadian Loan Party, (iii) the designation of any Unrestricted Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned (with respect to US Secured Obligations, to apply only to the designation of an Unrestricted Subsidiary that is a Material Domestic Subsidiary) (other than an Excluded Subsidiary), (yiv) upon the acquisition of any material assets by the Borrower or any Restricted Subsidiary Guarantor or ceasing to be an Immaterial Subsidiary (z) with respect to US Secured Obligations, to apply only to a Restricted Subsidiary that is a Domestic Subsidiary) or(other than an Excluded Subsidiary), (v) any Restricted Subsidiary at the time it becomes a Loan Party, for any material assets held by such that iswas an Excluded Subsidiary ceasing to be an Excluded Subsidiary (for the avoidance of doubt, in each case, other than assets constituting Collateral under a Collateral Document that becomes subject case with respect to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
preceding clauses (i) within forty-five through (45iv), including in connection with the Acquisition)or (vi) the designation of a Discretionary Guarantor, on or before the date that is sixty (60) days (or after the end of such greater number of days specified below) after Fiscal Quarter in which such formation, acquisition transaction or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days occurred (or such longer period as the Administrative Agent may agree in its reasonable discretionreasonably agree), the Lead Borrower shall (A) in cause such Restricted Subsidiary (other than any Excluded Subsidiary)or Discretionary Guarantor to comply with the requirements set forth in the case definition of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the “Collateral and Guarantee Requirement;
” and the Perfection Requirements and (CB) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to upon the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments reasonable request of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic relevantsuch Restricted Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required Discretionary Guarantor to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opiniona customary opinion of counsel for such Restricted Subsidiary or Discretionary Guarantor, addressed to the Administrative Agent and the other relevant Secured Parties, of counsel for the Loan Parties reasonably acceptable . Notwithstanding anything to the Administrative Agent as to such matters set forth contrary herein or in this Section 8.11(aany other Loan Document, (i) as the Administrative Agent may reasonably request; and
grant extensions of time or any period in this Agreement or in any other Loan Document (iii) as promptly as practicable at any time, including, in each case, after the reasonable request therefor by expiration of any relevant time or period, which will be retroactive) for the Administrative Agentcreation and perfection of security interests in, deliver to the Administrative Agent or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to each Material Real Propertyto, title reportsparticular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, surveys and environmental assessment reports and appraisals (if required under FIRREA)or Restricted Subsidiaries formed or acquired, flood certifications under Regulation H of after the Federal Reserve BoardClosingAmendment No. 2 Effective Date) where it reasonably determines, provided that in consultation with the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, howeverLead Borrower, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent action cannot be obtained; and
(i) accomplished without undue effort or expense by the Borrower shall obtain time or times at which it would otherwise be required to be accomplished by this Agreement or the security interests Collateral Documents, and Guarantees set forth on Schedule 1.1A on or prior each Lender hereby consents to the dates corresponding to any such security interests and Guarantees set forth on Schedule 1.1A; and extension of time;, (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already Lien required to be subject granted from time to a perfected Lien time pursuant to the Collateral and Guarantee Requirement, the Borrower Requirement shall give notice thereof be subject to the Administrative Agent exceptions and limitations set forth therein and in the Collateral Documents;, (iii) except as otherwise required by Section 5.15, perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of pledged Capital Stock and/or Material Debt Instruments);, (iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement;, (v) no Loan Party will takebe required to take any action that isto the extent limited or, restricted or cause not required by the relevant Collateral and Guarantee Requirement and any other Loan PartyDocument;, (vi) in no event will the Collateral include any Excluded Assets;, (vii) no action shall be required to take, perfect a Lien in any asset in respect of which the actions referred to in Section 8.13(b).
perfection of a security interest therein would (c1) Notwithstanding anything to violate the contrary contained herein, no assets (x) terms of any entity contract relating to such asset that becomes a Loan Party as a result is permitted or otherwise not prohibited by the terms of a Permitted Acquisition this Agreement and is binding on such asset on the ClosingAmendment No. 2 Effective Date or at the time of its acquisition and not incurred in contemplation thereof (y) acquired from a third party by a Loan Party outside other than in the ordinary course case of businesspermitted capital leases, purchase money and similar financings), in each case, which were after giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law or (2) trigger termination of any contract relating to such asset that is permitted or otherwise not included prohibited by the terms of this Agreement and is binding on such asset on the ClosingAmendment No. 2 Effective Date or at the time of its acquisition and not incurred in contemplation thereof (other than in the analysis case of permitted capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision; it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the most recent Updated Inventory Appraisal UCC, PPSA or Field Examination other applicable law notwithstanding the relevant prohibition, violation or termination right, and which is otherwise eligible for inclusion in the calculation of the Borrowing Base (viii) any joinder or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in supplement to any case at the expense of the Borrower (without regard to, or counting againstLoan Guaranty, any limitations on expense reimbursement or Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to this Section 5.12 above may, with the number consent of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty set forth in any Loan Document to the Administrative Agent extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document. No and (Bix) any time periods to comply with the foregoing Section 5.12 shall not apply to Discretionary Guarantors (provided that such other due diligence entity shall not be deemed a Guarantor or Discretionary Guarantor until such entity has complied with such requirements). Except as may be expressly agreed with respect to such assets any Foreign Discretionary Guarantor, no Canadian Loan Party shall be deemed to have provided a Loan Guaranty in respect of any US Obligation (it being understood that the US Loan Parties shall guarantee the Canadian Obligations). For the avoidance of doubt, it is understood, agreed and intended by the parties hereto that, notwithstanding anything to the contrary herein or in any other Loan Document, in the case of Obligations of a Loan Party with respect to US Obligations (including any Credit Extension, Overadvance or Protective Advance made to the US Borrowers)Borrower), except as may be expressly agreed with respect to any Foreign Discretionary Guarantor, (i) under no circumstance shall the Administrative Agent may require in its Permitted DiscretionAgent, all any Lender or any Participant have recourse to the Capital Stock of any Foreign Subsidiary or any Foreign Subsidiary Holdco, other than 65% of the results issued and outstanding Capital Stock of any Restricted Subsidiary that is a direct, first-tier Restricted Subsidiary of the foregoing US BorrowersBorrower or a Subsidiary Guarantor of the US Obligations (it being understood with respect to be satisfactory any Credit Extension, Overadvance or Protective Advance made to the Administrative Agent US BorrowersBorrower, a Subsidiary Guarantor (other than any Foreign Discretionary Guarantor) will at no time include a Foreign Subsidiary, a Foreign Subsidiary Holdco or any direct or indirect subsidiary of a Foreign Subsidiary or a Foreign Subsidiary Holdco) and (ii) under no circumstance shall any Foreign Subsidiary or Foreign Subsidiary Holdco or any direct or indirect subsidiary of a Foreign Subsidiary or Foreign Subsidiary Holdco be a Guarantor hereunder or under any Loan Document with respect to the US Obligations or in its Permitted Discretionany other way be required to comply with the requirements set forth in clause (a) of the definition of “Collateral and Guarantee Requirement” with respect to the US Obligations.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be is satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary, but including any Subsidiary or that ceases to constitute an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets (including Material Real Propertyfee-owned real property) by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than (1) assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien), and (2) Excluded Property (as defined in the Security Agreement)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to furnish to the Collateral Agent a description of the Material Real Propertiesfee-owned real properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Collateral Agent;
(ii) in in the case of Mortgages and related documents specified in Section 8.13(b)within forty-five (45) days after such formation, acquisition or designationdesignation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement; provided that Holdings, the Borrower and any of their respective Subsidiaries shall not be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Ciii) within forty-five (45) days after such formation, acquisition or designation or such longer period as the Administrative Agent may agree in its reasonable discretion, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver (A) any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and (B) instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent; provided that no such Material Domestic Subsidiary shall be required to enter into any Collateral Documents or other pledge or security agreements governed or purported to be governed by foreign law;
(Div) within forty-five (45) days (after such formation, acquisition or within one hundred and eighty (180) days (designation or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC and PPSA financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect 8.12; provided that no such Material Domestic Subsidiary shall be required to all Deposit Accounts; andenter into any Collateral Documents or other pledge or security documents governed or purported to be governed by foreign law;
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the written request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an a legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iivi) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property Propertyfee-owned real property by the Borrower or any Loan PartyParty other than Holdings, and if such Material Real Property Propertyfee-owned real property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee RequirementSection 8.13, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to set forth in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionMaterial Real Propertyfee-owned real property.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary Party or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Acquisition Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reportspolicies, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A to the Original Credit Agreement on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A to the Original Credit Agreement; and and
(ii) after the Restatement Effective Acquisition Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At (a) Upon (x) the Borrower’s expense, subject to the provisions request of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that following the Collateral occurrence and Guarantee Requirement continues during the continuance of a Specified Default or (y) (i) the delivery of the report (the “Report”) required to be satisfied, including:
(adelivered pursuant to Section 6.02(i) (x) upon indicating the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary), (ii) the delivery of a Compliance Certificate indicating that a Domestic Subsidiary previously determined to be an Immaterial Subsidiary or an Excluded Subsidiary is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, or (iii) the acquisition of any property by any Loan Party, and such property, in the designation judgment of the Administrative Agent, shall not already be subject to a perfected first priority security interest subject to Specified Statutory Liens in accordance favor of the Administrative Agent for the benefit of the Secured Parties, unless expressly excluded from being required to be the subject of such security interest by the terms of this Agreement or the terms of the Collateral Documents, then the Borrower shall, in each case at the Borrower’s expense:
(i) in connection with Section 8.3, the formation or acquisition of any existing direct or indirect Wholly-Owned a Domestic Subsidiary that is a Material Subsidiary (other than an Excluded Subsidiary) or the determination that any Domestic Subsidiary as a Restricted previously determined to be an Immaterial Subsidiary or any an Excluded Subsidiary becoming a Wholly-Owned is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, within 10 Business Days after the delivery of the Report, cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any a Domestic Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such and not an Excluded Subsidiary (in each caseif it has not already done so), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations duly execute and deliver to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 5 Business Days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under request or after the Collateral and Guarantee Requirement to delivery of the Report or such Compliance Certificate, furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days real properties having a purchase price (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)a Specified Default, fair market value) after such formationof $10,000,000 or more and, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formationa Specified Default, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.properties
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon (xi) upon the formation or acquisition after the Closing Date of any new direct or indirect Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary Subsidiary, (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiaryii) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Unrestricted Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned Restricted Subsidiary that is a Material Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (y) upon on or before the acquisition of any material assets by date that is 60 days after the Borrower relevant formation, acquisition, designation or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days cessation occurred (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
reasonably agree), the Borrower shall (A) cause each such Material Domestic Restricted Subsidiary that is required (other than any Excluded Subsidiary) to become a Subsidiary Guarantor under comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant Restricted Subsidiary to furnish deliver to the Administrative Agent a description customary opinion of the Material Real Properties owned by counsel for such Material Domestic Subsidiary in detail reasonably satisfactory Restricted Subsidiary, addressed to the Administrative Agent;Agent and the Lenders; provided, however, that notwithstanding the foregoing, no Subsidiary that is an Excluded Subsidiary shall be required to take any action described in this Section 5.11(a).
(Bb) within forty-five (45) days (or within one hundred and eighty (180) Within 60 days (or such longer period as the Administrative Agent may reasonably agree in its (provided that the Administrative Agent will use commercially reasonable discretionefforts to confirm Lenders do not need additional time to complete independent due diligence with respect to any potential Material Real Estate Assets before entering into a new Mortgage)) in (1) after the Closing Date, in the case of Mortgages and related documents specified in Section 8.13(b)Material Real Estate Assets (other than any Excluded Asset) owned by Loan Parties on the Closing Date or (2) after such formationthe acquisition by any Loan Party of any Material Real Estate Asset (other than any Excluded Asset), acquisition or designation, cause each in the case of such Material Domestic Real Estate Assets acquired after the Closing Date, the Borrower shall cause such Loan Party to comply with the requirements set forth in clause (c) of the definition of “Collateral and Guarantee Requirement” with respect to the relevant Material Real Estate Asset; it being understood and agreed that, with respect to any Material Real Estate Asset owned by any Restricted Subsidiary that at the time such Restricted Subsidiary is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Loan Party under Section 8.13(b) with respect to Mortgages of any Material Real Property5.11(a), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property Estate Asset shall not already be subject deemed to have been acquired by such Restricted Subsidiary on the first day on which it becomes a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Party under Section 8.13(b5.11(a).
(c) Notwithstanding anything to the contrary contained hereinherein or in any other Loan Document, it is understood and agreed that:
(i) the Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any such extension of time,
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth in the Collateral Documents, LEGAL_US_E # 159035042.9
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of Capital Stock or Material Debt Instruments, in each case, to the extent included in the Collateral),
(iv) no assets Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(v) no Loan Party will be required to (A) take any action outside the U.S. to grant or perfect any security interest in any asset located outside of the U.S., (B) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign intellectual property schedule;
(vi) in no event will the Collateral include any Excluded Asset,
(vii) no action shall be required to perfect any Lien with respect to (A) any vehicle or other asset subject to a certificate of title, and any retention of title, extended retention of title rights, or similar rights, (B) Letter-of-Credit Rights, (C) the Capital Stock of any Immaterial Subsidiary or (D) the Capital Stock of any Person that is not a Subsidiary which, if a Subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent that a security interest therein is perfected by filing a Form UCC-1 financing statement (which, for the avoidance of doubt shall be the only required perfection action),
(viii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Requirement of Law,
(ix) any joinder or supplement to any Loan Guaranty, any Collateral Document or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.11(a) may, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any representation or warranty with respect to such Restricted Subsidiary set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the terms of any other Loan Document,
(x) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any entity that becomes a Lien granted in, those assets as to which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside to conduct its operations and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, in each casestamp, which were not included in intangibles or other Tax or expenses relating to such Lien) outweighs the analysis under benefit to the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation Lenders of the Borrowing Base or the Term Borrowing Basesecurity afforded thereby, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of as reasonably determined by the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory and
(xi) no Subsidiary of the Borrower shall be required to provide any guarantee, pledge or asset support agreement that, in the reasonable judgment of the Borrower in consultation with the Administrative Agent and (B) such other due diligence with respect to such assets as Agent, would subject the Administrative Agent may require in its Permitted Discretion, all Borrower or any Subsidiary of the results Borrower to any adverse tax consequence as a result of the foregoing to be satisfactory to application of Section 956 of the Administrative Agent in its Permitted Discretion.Code. LEGAL_US_E # 159035042.9
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is becoming a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) (or such longer period as agreed by the Collateral Agent in its reasonable discretion) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty twenty (180120) days in the case of documents listed in Section 6.13(b)) (or such longer period as agreed by the Administrative Collateral Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent a joinder to the guaranty Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) 6.13(b)); provided, however, that, prior to the delivery of any Mortgage encumbering such Material Real Property, the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to Mortgages of any each such Material Real PropertyProperty and if such Material Real Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each other Loan Party relating thereto and (ii) evidence of flood insurance as required under Section 6.07), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty twenty (180120) days in the case of documents listed in Section 6.13(b)) (or such longer period as agreed by the Administrative Collateral Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty twenty (180120) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent or Collateral Agent, deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, reports; provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and;
(ib) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and [reserved];
(iic) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien (subject to Permitted Liens) under the Collateral Documents with the priority required pursuant to the Collateral and Guarantee RequirementRequirement and is required to be, the Borrower shall give notice thereof to the Administrative Collateral Agent and within one hundred twenty (120) days (or such longer period as agreed by the Collateral Agent in its reasonable discretion) of the date of such acquisition shall cause such real property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything ; provided, however, that, prior to the contrary contained herein, no assets (x) delivery of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businessMortgage encumbering such Material Real Property, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has shall have received a completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such assets Material Real Property and if such Material Real Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each other Loan Party relating thereto and (ii) evidence of flood insurance as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionrequired under Section 6.07.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s Borrowers’ expense, subject to the provisions of the Collateral and Guarantee Requirement Requirement, the Guarantee and Security Principles and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon (i) the formation formation, incorporation or acquisition of any new direct or indirect Wholly-Owned wholly owned Material Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned wholly owned Material Subsidiary, (in the case of each of the preceding clauses (i), (ii) and (iii), other than any Excluded Subsidiary), or (iv) an Excluded Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor Loan Party (except for real estate, which shall be governed by (b)) or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations it being understood that additional steps may be necessary to perfect such Lien)):
(i) within forty-five sixty (4560) days (or such greater number of days specified belowbelow or within one hundred and fifty (150) days in the case of documents listed in Section 6.13(b)) after such formation, incorporation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties Properties, if any, owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages and the other items listed in Section 6.13(b), mutatis mutandis, with respect to any Material Real Property, supplements to the Security Agreement SupplementsAgreements, Intellectual Property Security Agreements (where applicable) and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security AgreementAgreements, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) ), subject to the First Lien/Second Lien Intercreditor Agreement and/or any Customary Intercreditor Agreement, that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock stock, share and membership interest certificates to the extent certificated, subject to the First Lien/Second Lien Intercreditor Agreement and/or any Customary Intercreditor Agreement) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) and perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect subject to all Deposit Accounts; andPermitted Liens;
(ii) within forty-five sixty (4560) days (or within one hundred and eighty fifty (180150) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties or (as the case may be) the Secured Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably requestrequest (it being understood that with respect to any grant by a Loan Party of a security interest in the Equity Interests issued by an entity incorporated or organized under the laws of Australia, England and Wales, Singapore or the United States, if the entity issuing such Equity Interest is not organized under the laws of the same jurisdiction as such Loan Party, no legal opinion addressing laws of the jurisdiction in which such Loan Party is incorporated or organized shall be required by the Administrative Agent if such pledge is granted under a Collateral Document governed by the laws of the jurisdiction in which the issuer of such Equity Interest is incorporated); and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iib) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than any Holdings Entity that is required to be pledged under the Collateral and Guarantee Requirement and the Guarantee and Security Principles, and if such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower Representative shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b)6.13(b) within the time periods set forth therein.
(c) Notwithstanding anything any provision to the contrary contained hereinin this Agreement or any of the other Loan Documents, no assets (x) the obligations or liabilities of any entity that becomes a Singaporean Loan Party as under the Loan Documents to which it is a result party does not at any time extend to or apply to any obligation or liability of a Permitted Acquisition or (y) acquired from a third party by a such Singaporean Loan Party outside (the ordinary course of business, in each case, which were not included in the analysis “Affected Liabilities”) under the most recent Updated Inventory Appraisal Loan Documents which would, but for this proviso, cause such obligation or Field Examination and which is otherwise eligible for inclusion in the calculation liability to be unlawful or prohibited by Section 76 of the Borrowing Base Singapore Companies Act at that time, and on the basis that once such unlawfulness or prohibition ceases to apply to the Term Borrowing BaseAffected Liabilities on the completion of the whitewash procedures set out in Section 76 of the Singapore Companies Act for permitting the financial assistance constituted by the Loan Documents in respect of that Singaporean Loan Party, may the Affected Liabilities shall and shall continue to be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionrelevant Loan Document.
Appears in 1 contract
Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingfollowing actions:
(a) upon (x) upon (1) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (2) the designation in accordance with Section 8.3, 6.14 of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary of a Loan Party as a Restricted Subsidiary or (3) any Subsidiary Person becoming a Wholly-Owned Subsidiary that is a direct wholly owned Material Domestic Subsidiary, (y) upon the acquisition Subsidiary of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, case under this clause (x) other than assets constituting Collateral under an Excluded Subsidiary, and (y) any direct wholly owned Material Domestic Subsidiary of a Collateral Document that becomes subject Loan Party ceasing to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):be an Excluded Subsidiary:
(i) within forty-five sixty (4560) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (event or such longer period as the Administrative Agent may agree in its reasonable discretion, cause such Material Domestic Subsidiary to execute the Guaranty (or a joinder thereto);
(ii) within sixty (60) days or such longer period as the Administrative Agent may agree in in its reasonable discretion, cause such Material Domestic Subsidiary to execute and deliver to the case of Mortgages Collateral Agent, a Security Agreement Supplement, a counterpart signature page to the Intercompany Subordination Agreement, any applicable Intellectual Property Security Agreements and the Global Intercompany Note and related documents specified endorsement;
(iii) within sixty (60) days or such longer period as the Administrative Agent may agree in Section 8.13(b)) after such formation, acquisition or designationits reasonable discretion, cause such Material Domestic Subsidiary (and the parent of each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(bLoan Party) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee RequirementSecurity Agreement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed Security Agreement endorsed in blank to the Administrative Collateral Agent;
(Div) within forty-five sixty (4560) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement Security Agreement to take whatever such customary action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as reasonably requested by and as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first first-priority perfected Liens (subject to the Intercreditor AgreementLiens permitted under Section 7.01) perfected Liens required by the Collateral and Guarantee RequirementSecurity Agreement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iiv) within forty-five sixty (4560) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to upon reasonable request of the Administrative Agent Agent, deliver a signed copy of an a customary opinion, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey actions relating to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent canLiens on real property are governed by Section 6.11(b) and not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in this Section 8.13(b6.11(a).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: First Lien Credit Agreement (Authentic Brands Group Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject Subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingIntercreditor Agreement:
(a) Upon the formation or acquisition of any Material Subsidiary (xother than any Permitted Receivables Financing Subsidiary so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) upon by any Loan Party, pledge such Loan Party's equity interest in such entity; provided that such pledge shall be limited to 66% of voting Equity Interests with respect to any Foreign Subsidiary.
(b) Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (other than Permitted Receivables Financing Subsidiaries and Immaterial Subsidiaries, in each case, case so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) by any Loan Party or upon the acquisition of any personal property (other than an Unrestricted Subsidiary “Excluded Property” as defined in the Security Agreement) or an Excluded Subsidiary) any Material Real Property by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by then the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower's expense:
(i) within forty-five (45) 15 days after such formation or acquisition (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree agree), cause such Domestic Subsidiary, and cause each direct and indirect parent of such Domestic Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties' obligations under the Loan Documents,
(Aii) cause each within 15 days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under formation or acquisition (or such longer period as the Collateral and Guarantee Requirement to Administrative Agent may agree), furnish to the Administrative Agent a description of the Material Real Properties owned by Property and personal properties of such Material Domestic Subsidiary or such other personal property and Material Real Property, in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(bagree)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement each direct and indirect parent of such Domestic Subsidiary and each other respective Loan Party (if it has not already done so) to duly execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, Intellectual Property IP Security Agreements Agreement Supplements, amendment to the Loan Documents and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)pledge agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with including such instruments of the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents type specified in effect on the Restatement Effective DateSection 4.01(a)(iii)), in each securing payment of all the Obligations of such Domestic Subsidiary, such parent or such Loan Party, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such real and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary personal properties, provided, that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing only 66% of voting Equity Interests (to the extent certificated) that are of any Foreign Subsidiary shall be required to be pledged pursuant as Collateral; provided, further, that notwithstanding anything to the Collateral and Guarantee Requirementcontrary in any Loan Document, accompanied no assets owned by undated stock powers any Foreign Subsidiary or other appropriate instruments of transfer executed Equity Interests in blank (any Permitted Receivables Financing Subsidiary or assets owned by any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Permitted Receivables Financing Subsidiary and shall be required to be pledged pursuant to as Collateral (so long as such Equity Interests or assets shall not constitute collateral under the Collateral ABL Loan Documents, indorsed in blank to the Administrative Agent;),
(Div) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(bagree)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral (if it has not already done so) and Guarantee Requirement each other respective Loan Party to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, IP Security Agreement Supplements, amendments to the Collateral Loan Documents and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) 60 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretionagree), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an opinionone or more favorable opinions, addressed to the Administrative Agent Agent, on behalf of itself, and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; , and
(iiivi) as promptly as practicable after such formation or acquisition, deliver, upon the reasonable request therefor by of the Administrative AgentAgent in its sole discretion, deliver to the Administrative Agent with respect to each parcel of Material Real Property, Property owned by the entity that is the subject of such formation or acquisition title reports, surveys and Phase I environmental assessment reports and appraisals (if required under FIRREA)reports, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)Agent.
(c) Notwithstanding anything to the contrary contained hereinforegoing, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, shall not take a security interest in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, those assets as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to which the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require shall determine, in its Permitted Discretionreasonable discretion, all that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax) are excessive in relation to the benefit to the Lenders of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsecurity afforded thereby.
Appears in 1 contract
Samples: Term B Loan Credit Agreement (Fidelity National Financial, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon Upon the formation or acquisition by any Loan Party (other than a Foreign Borrower) of any new direct or indirect Whollywholly-Owned owned Subsidiary (other than an Excluded Foreign Subsidiary) that is a Material Domestic Subsidiary, upon any existing Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Foreign Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is becoming a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation election of the obligations to perfect such Lien)):Company, then the Company shall, at the Company’s expense:
(i) within forty-five (45) 30 days after such formation (or such greater number longer period, not to exceed 90 days, as determined in the discretion of days specified below) after such formationthe Administrative Agent), acquisition or designation oroccurrence, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by real and personal properties of such Material Domestic Subsidiary Subsidiary, in detail reasonably satisfactory to the Administrative Agent;
(Bii) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period period, not to exceed 90 days, as determined in the discretion of the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)Agent) after such formation, acquisition or designationoccurrence, cause such Subsidiary and each direct and indirect parent of such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so) to duly execute and deliver to the Administrative Agent Security Agreement Supplementsan amendment or joinder to the Guarantee and Collateral Agreement, Intellectual Property Security Agreements and such Mortgages, other security agreements and pledge agreements, and such other documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)as Administrative Agent deems necessary for such Subsidiary or such parent, as reasonably requested the case may be, to Guarantee the other Loan Parties’ obligations under the Loan Documents, and as may be required, to secure payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and to constitute Liens on all real property owned by such Subsidiary having a fair market value of at least $5,000,000 and in form and substance reasonably satisfactory to the Administrative Agent all personal property (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required than Excluded Property) owned by the Collateral and Guarantee Requirementsuch Subsidiary;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(Diii) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period period, not to exceed 90 days, as determined in the discretion of the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)Agent) after such formation, acquisition or designationoccurrence, (1) take and cause the applicable Material Domestic such Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (if it has not already done so) to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral Mortgages and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(iiiv) within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period period, not to exceed 90 days, as determined in the discretion of the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)Agent) after the request therefor by the Administrative Agent (such formation, acquisition or such longer period as the Administrative Agent may agree in its reasonable discretion)occurrence, deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (ii) and (iii) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and. Notwithstanding the foregoing or any other provision of the Loan Documents to the contrary, no direct or indirect Subsidiary of any Foreign Borrower shall be required to guarantee any of the Obligations of any Foreign Borrower or grant any Liens on any of its assets to secure the Obligations of any Foreign Borrower.
(iiib) Upon the formation or acquisition of any new direct or indirect wholly-owned Excluded Foreign Subsidiary by any Loan Party (other than a Loan Party that is an Excluded Foreign Subsidiary or any direct or indirect Subsidiary of any Foreign Borrower), then the Company shall, at the Company’s expense, within 30 days (or such longer period, not to exceed 90 days, as promptly as practicable after determined in the reasonable request therefor by discretion of the Administrative Agent) after such formation or acquisition, cause each direct and indirect parent of such Excluded Foreign Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey an amendment to the extent prepared as of a date reasonably satisfactory Guarantee and Collateral Agreement to grant to the Administrative Agent; provided, howeverfor the benefit of the Secured Parties, a security interest in the Equity Interests of such new Excluded Foreign Subsidiary that there is owned by any such Loan Party (provided that in no event shall more than 65% of the total outstanding voting Equity Interests of any such new Excluded Foreign Subsidiary be no obligation to deliver so pledged).
(c) Except to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower extent covered by Section 6.12(a) or one of its Subsidiaries(b), where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after upon the acquisition of any Material Real Property by the Borrower real property having a fair market value of at least $5,000,000 or any personal property (other than Excluded Property) by any Loan PartyParty (other than a Foreign Borrower), and if such Material Real Property property, in the judgment of the Administrative Agent, shall not already be subject to a perfected Lien pursuant to in favor of the Collateral and Guarantee RequirementAdministrative Agent for the benefit of the Secured Parties, then the Borrower shall give notice thereof Company shall, at the Company’s expense:
(i) concurrently with the delivery of the first Compliance Certificate delivered after such acquisition, furnish to the Administrative Agent and will take, or cause a description of the relevant Loan Party, property so acquired in detail satisfactory to take, the actions referred to in Section 8.13(b).Administrative Agent; and
(cii) Notwithstanding anything within 30 days (or such longer period, not to the contrary contained hereinexceed 90 days, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included determined in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation discretion of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4Agent) (A) Inventory appraisals and Field Examinations, as may be reasonably required after request by the Administrative Agent, from appraisers cause the applicable Loan Party to duly execute and examiners reasonably satisfactory deliver to the Administrative Agent an amendment to the Guarantee and (B) Collateral Agreement, Mortgages and such other due diligence with respect to such assets documents as the Administrative Agent may require in its Permitted Discretion, deems necessary to secure payment of all the Obligations of such Loan Party under the results of the foregoing Loan Documents and to be satisfactory to the Administrative Agent in its Permitted Discretionconstitute Liens on such property.
Appears in 1 contract
Samples: Credit Agreement (Outerwall Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement Requirement, the terms of the First Lien/Second Lien Intercreditor Agreement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary) becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic SubsidiarySubsidiary of the Borrower, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)) but excluding Excluded Assets):
(ia) within forty-five (45) days (or such greater number of the days specified below) below after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Guaranty (or a joinder thereto) and other documentation the Administrative Agent a description may reasonably request from time to time in order to carry out more effectively the purposes of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to Guaranty and the Administrative Agent;Collateral Documents and
(BA) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent items listed in Section 6.11(2)(b), mutatis mutandis, with respect to any supplements to the Security Agreement SupplementsAgreement, a counterpart signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyif applicable), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective DateClosing Date as amended and in effect from time to time), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(CB) within sixty (60) days after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to deliver to the Collateral Agent (or its agent, designee or bailee pursuant to the First Lien/Second Lien Intercreditor Agreement and/or any other Intercreditor Agreement) any and all certificates representing Equity Interests (to the extent certificatedcertificated and required to be delivered to the Collateral Agent (or its agent, designee or bailee pursuant to the First Lien/Second Lien Intercreditor Agreement and/or any other Intercreditor Agreement)) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing and, if applicable, a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(DC) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of (i) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (ii) to the extent applicable, each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take whatever action customary action(s) (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery to the Collateral Agent (or its agent, designee or bailee pursuant to the First Lien/Second Lien Intercreditor Agreement and/or any other Intercreditor Agreement) of stock and membership interest certificates to the extent certificatedcertificated and required to be delivered to the Collateral Agent (or its agent, designee or bailee pursuant to the First Lien/Second Lien Intercreditor Agreement and/or any other Intercreditor Agreement)) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) (or its agent, designee or bailee pursuant to the First Lien/Second Lien Intercreditor Agreement and/or any other Intercreditor Agreement) valid first priority and perfected (subject to the Intercreditor AgreementLiens permitted by Section 7.01) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iiD) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified described in Section 8.13(b6.11(2)(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opiniona customary Opinion of Counsel, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(1) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey actions relating to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent canLiens on real property are governed by Section 6.11(2) and not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in this Section 8.13(b6.11(1).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the BorrowerCompany’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary that is or a Material Domestic Foreign Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is becoming a wholly owned Material Domestic Subsidiary as or a Restricted Material Foreign Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower Company or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) (or such longer period as agreed by the Agent in its reasonable discretion) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary or Material Foreign Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty twenty (180120) days in the case of documents listed in Section 5.13(b)) (or such longer period as agreed by the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary or Material Foreign Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security a Joinder Agreement Supplementsin substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”), a joinder to the guaranty, Mortgages with respect to any Material Real Property, security agreement supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) 5.13(b)); provided, however, that, prior to the delivery of any Mortgage encumbering such Material Real Property, the Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to Mortgages of any each such Material Real PropertyProperty and if such Material Real Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrowers and each other Loan Party relating thereto and (ii) evidence of flood insurance as required under Section 5.07), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security AgreementAgreements, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary and Material Foreign Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and Material Foreign Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty twenty (180120) days in the case of documents listed in Section 5.13(b)) (or such longer period as agreed by the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary or Material Foreign Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary or Material Foreign Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code or PPSA financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty twenty (180120) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b5.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a5.11(a) as the Administrative Agent may reasonably request; , and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, reports; provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Company or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower Company to obtain such consent, such consent cannot be obtained;
(b) [reserved]; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iic) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien (subject to Permitted Liens) under the Collateral Documents with the priority required pursuant to the Collateral and Guarantee RequirementRequirement and is required to be, the Borrower Company shall give notice thereof to the Administrative Agent and within one hundred twenty (120) days (or such longer period as agreed by the Agent in its reasonable discretion) of the date of such acquisition shall cause such real property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b5.13(b).
(c) Notwithstanding anything ; provided, however, that, prior to the contrary contained herein, no assets (x) delivery of any entity that becomes Mortgage encumbering such Material Real Property, the Agent shall have received a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each such assets Material Real Property and if such Material Real Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrowers and each other Loan Party relating thereto and (ii) evidence of flood insurance as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionrequired under Section 5.07.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Wholly‑Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 8.3 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Wholly‑Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;[reserved]
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)documents, as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and[reserved]
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)[reserved].”
(ci) Notwithstanding anything Amendment to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.8.13
Appears in 1 contract
Samples: Credit Agreement (J Crew Group Inc)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject Subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, includingIntercreditor Agreement:
(a) Upon the formation or acquisition of any Material Subsidiary (xother than any Permitted Receivables Financing Subsidiary so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) upon by any Loan Party, pledge such Loan Party’s equity interest in such entity; provided that such pledge shall be limited to 66% of voting Equity Interests with respect to any Foreign Subsidiary.
(b) Upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material wholly owned Domestic Subsidiary (other than Permitted Receivables Financing Subsidiaries and Immaterial Subsidiaries, in each case, case so long as such Subsidiary is not a borrower or guarantor under the ABL Loan Documents) by any Loan Party or upon the acquisition of any personal property (other than an Unrestricted Subsidiary “Excluded Property” as defined in the Security Agreement) or an Excluded Subsidiary) any Material Real Property by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by then Holdings and the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary shall, at Holdings’ and the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):Borrower’s expense:
(i) within forty-five (45) 15 days after such formation or acquisition (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree agree), cause such Domestic Subsidiary, and cause each direct and indirect parent of such Domestic Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 15 days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under formation or acquisition (or such longer period as the Collateral and Guarantee Requirement to Administrative Agent may agree), furnish to the Administrative Agent a description of the Material Real Properties owned by Property and personal properties of such Material Domestic Subsidiary or such other personal property and Material Real Property, in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(bagree)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement each direct and indirect parent of such Domestic Subsidiary and each other respective Loan Party (if it has not already done so) to duly execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, Intellectual Property IP Security Agreements Agreement Supplements, amendment to the Loan Documents and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)pledge agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with including such instruments of the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents type specified in effect on the Restatement Effective DateSection 4.01(a)(ii)), in each securing payment of all the Obligations of such Domestic Subsidiary, such parent or such Loan Party, as the case granting may be, under the Loan Documents and constituting Liens required by the Collateral on all such real and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary personal properties, provided, that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing only 66% of voting Equity Interests (to the extent certificated) that are of any Foreign Subsidiary shall be required to be pledged pursuant as Collateral; provided, further, that notwithstanding anything to the Collateral and Guarantee Requirementcontrary in any Loan Document, accompanied no assets owned by undated stock powers any Foreign Subsidiary or other appropriate instruments of transfer executed Equity Interests in blank (any Permitted Receivables Financing Subsidiary or assets owned by any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Permitted Receivables Financing Subsidiary and shall be required to be pledged pursuant to as Collateral (so long as such Equity Interests or assets shall not constitute collateral under the Collateral ABL Loan Documents, indorsed in blank to the Administrative Agent;),
(Div) within forty-five (45) 30 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(bagree)) after , cause such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or and indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor pursuant to the Collateral (if it has not already done so) and Guarantee Requirement each other respective Loan Party to take whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and delivery the endorsement of stock and membership interest certificates to the extent certificatednotices on title documents) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, IP Security Agreement Supplements, amendments to the Collateral Loan Documents and Guarantee Requirementsecurity and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) 60 days (after such formation or within one hundred and eighty (180) days acquisition (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretionagree), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of an opinionone or more favorable opinions, addressed to the Administrative Agent Agent, on behalf of itself, and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; , and
(iiivi) as promptly as practicable after such formation or acquisition, deliver, upon the reasonable request therefor by of the Administrative AgentAgent in its sole discretion, deliver to the Administrative Agent with respect to each parcel of Material Real Property, Property owned by the entity that is the subject of such formation or acquisition title reports, surveys and Phase I environmental assessment reports and appraisals (if required under FIRREA)reports, flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b)Agent.
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Term B Loan Credit Agreement (Remy International, Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a1) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary) becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic SubsidiarySubsidiary of the Borrower, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)) but excluding Excluded Assets):
(ia) within forty-five (45) days (or such greater number of the days specified below) below after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) , cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to execute the Guaranty (or a joinder thereto) and other documentation the Administrative Agent a description may reasonably request from time to time in order to carry out more effectively the purposes of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to Guaranty and the Administrative Agent;Collateral Documents and
(BA) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent items listed in Section 6.11(2)(b), mutatis mutandis, with respect to any supplements to the Security Agreement SupplementsAgreement, a counterpart signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Propertyif applicable), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective DateClosing Date as amended and in effect from time to time), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(CB) within sixty (60) days after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing and, if applicable, a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(DC) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.11(2)(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of (i) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (ii) to the extent applicable, each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take whatever action customary action(s) (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority and perfected (subject to the Intercreditor AgreementLiens permitted by Section 7.01) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts); and
(iiD) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified described in Section 8.13(b6.11(2)(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opiniona customary Opinion of Counsel, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(1) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey actions relating to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent canLiens on real property are governed by Section 6.11(2) and not be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and will take, or cause the relevant Loan Party, to take, the actions referred to in this Section 8.13(b6.11(1).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, 6.13 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic wholly owned Subsidiary as a Restricted Subsidiary or and any wholly owned Domestic Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five sixty (4560) days (or such greater number of days as specified below) after such formation, acquisition or designation or, in each case, (or such longer period as the Administrative Agent may agree in its reasonable sole discretion:):
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five ninety (4590) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b)6.12(b) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements (other than in respect of copyrights) and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.12(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements (other than in respect of copyrights) and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing its Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five ninety (4590) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b)6.12(b) after such formation, acquisition or designation, (1) take and cause the applicable such Material Domestic Subsidiary and each direct or indirect parent of the applicable such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law),
(E) within sixty (60) days in the case of Intellectual Property Security Agreements in respect of U.S. copyright registrations and (2) comply applications therefor, after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Intellectual Property Security Agreements in respect of such copyrights in form and substance consistent with the requirements Intellectual Property Security Agreements in respect of Section 8.12 with respect to all Deposit Accounts; copyrights in effect on the Closing Date, in each case granting Liens required by the Collateral and Guarantee Requirement, and
(ii) within forty-five sixty (4560) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.12(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable sole discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; andprovided that, notwithstanding the foregoing, any such opinion shall not be required to be delivered prior to the expiration of the 60-day period specified in clause (i) above or, if earlier, the date on which the requirements specified in sub-paragraphs (A) through (D) of clause (i) above have been satisfied, 668
(iiib) as promptly as practicable after the reasonable request therefor by the Administrative AgentClosing Date, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals within ninety (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that 90) days (or such longer period as the Administrative Agent may agree in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(isole discretion) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and promptly thereafter shall cause such Material Real Property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party, Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in Section 8.13(b6.12(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Credit Agreement
Covenant to Guarantee Obligations and Give Security. (a) At the Borrower’s expenseany time that any Loan Party or any newly formed or acquired Subsidiary (including, without limitation, pursuant to a Delaware LLC Division) that is to become a Loan Party pursuant to clause (b) below acquires any Material Real Property or personal property (other than Excluded Property) not subject to the provisions a perfected, first priority Lien (subject to Liens permitted by Section 7.01) in favor of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent pursuant to ensure that the Collateral and Guarantee Requirement continues to be satisfiedDocuments, including:
within ten (a10) Business Days after the acquisition of such Material Real Property or personal property (xother than Excluded Property) upon by such Loan Party (other than any leasehold interests in real property) or the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is such Subsidiary, the Borrower shall furnish to the Administrative Agent, in detail satisfactory to the Administrative Agent, a written description of such Material Domestic Subsidiary Real Property and personal property (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such LienProperty)):.
(ib) within Within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in of the case formation or acquisition of Mortgages and related documents specified in Section 8.13(b)a Subsidiary (other than (x) after an Excluded Subsidiary, (y) a CFC or (z) a CFC Holdco) by any Loan Party, the Borrower shall, or shall cause such formationLoan Party and/or such Subsidiary to, acquisition or designationat the Borrower’s expense, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to (i) duly execute and deliver to the Administrative Agent a Joinder Agreement; (ii) deliver appropriate UCC-1 financing statements or such other financing statements as may be necessary in the Administrative Agent’s reasonable determination to obtain a first priority perfected Lien (subject to Permitted Liens that are senior in priority under applicable Law) upon the assets of such Subsidiary; (iii) deliver to the Administrative Agent any instruments evidencing Collateral consisting of debt pledged pursuant to the Security Agreement Supplements, Intellectual Property Security Agreements or other instruments specified in the Collateral Documents (including delivery of all pledged Equity Interests in and of such Subsidiary); and (iv) provide to Administrative Agent all other security agreements and documents documentation (including, to the documents listed in Section 8.13(b) extent requested by the Administrative Agent, one or more legal opinions of counsel with respect to Mortgages the execution and delivery of any Material Real Propertythe applicable documentation referred to herein and perfection of the Administrative Agent’s Lien granted in connection therewith); in each case, as reasonably requested by and all in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;Agent.
(Cc) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within Within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the formation or acquisition of any new direct Subsidiary that is a (x) CFC or (y) CFC Holdco, by any Loan Party, the Borrower shall, or shall cause such Loan Party, at the Borrower’s expense, (i) to enter into a supplement to the Security Agreement to pledge 66% of the voting Equity Interests held by such Loan Party in such Subsidiary and 100% of any non-voting Equity Interests held by such Loan Party, (ii) to deliver to the Administrative Agent any Securities Collateral and instruments evidencing Collateral consisting of debt pledged pursuant to the Security Agreement (in each case, including transfer powers related thereto) or other instruments required to be so delivered in the case Collateral Documents and (iii) to provide to Administrative Agent all other documentation (including, to the extent requested by the Administrative Agent, one or more legal opinions of Mortgages counsel with respect to the execution and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent delivery of the applicable Material Domestic Subsidiary that documentation referred to herein and perfection of the Administrative Agent’s Lien granted in connection therewith); in each case, all in form and substance reasonably satisfactory to Administrative Agent. For the avoidance of doubt, (A) no Excluded Subsidiary, CFC or CFC Holdco is required to become guaranty the payment of any Obligations or grant a Guarantor pursuant security interest on any of its property as security for any Obligation and (B) any Loan Party that pledges the Equity Interests of any Foreign Subsidiary, CFC or CFC Holdco shall not be required to the Collateral and Guarantee Requirement to take whatever action execute a pledge governed by any foreign Laws.
(including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificatedd) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or As soon as practicable but in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and
(ii) event within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the acquisition of any personal property (other than Excluded Property not subject to a first priority perfected Lien (subject to Permitted Liens that are senior in the case priority under applicable Law) in favor of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent by a Loan Party, the Borrower shall, or shall cause the applicable Loan Party to, at the Borrower’s expense, (i) deliver to the Administrative Agent any Securities Collateral and instruments evidencing Collateral consisting of debt pledged pursuant to the Security Agreement or other instruments specified in the Collateral Documents and (ii) take all such other action as the Administrative Agent may reasonably determine to be necessary to obtain the full benefits of, or (as applicable) in perfecting and preserving the Liens of, the Collateral Documents; provided, however, that the Loan Parties shall not be obligated to grant leasehold mortgages in real property to the Administrative Agent.
(e) Promptly, but in any event within ninety (90) days (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of acquisition by a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after the acquisition Loan Party of any Material Real Property by the Borrower or any Loan Party, and such (other than Material Real Property shall not already be which the Borrower intends to make subject to a perfected Lien pursuant Sale-Leaseback Transaction and with respect to which the Collateral and Guarantee RequirementBorrower is in compliance with the requirements of Section 7.19), the Borrower shall give notice thereof to the Administrative Agent and will take, or shall cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a such Loan Party to deliver deeds of trust, trust deeds, deeds to secure debt or mortgages, as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of businesscase may be, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination form and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners substance reasonably satisfactory to the Administrative Agent and its counsel to account for local matters, covering such Material Real Property (Btogether with the fixture filings and Assignments of Leases and Rents referred to therein in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(i) evidence that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid,
(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 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, excepting only Permitted Encumbrances, and providing for such other due diligence with respect to affirmative insurance and such assets coinsurance and direct access reinsurance as the Administrative Agent may require in its Permitted Discretion, all deem necessary,
(iii) evidence of the results insurance required by the terms of the foregoing Mortgages, and
(iv) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to be each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto).
(f) Upon the request of the Administrative Agent following the occurrence and during the continuance of an Event of Default, the Borrower shall, at the Borrower’s expense within ten (10) days after such request, furnish to the Administrative Agent a description of the real property of the Loan Parties and their respective Subsidiaries in detail satisfactory to the Administrative Agent in its Permitted DiscretionAgent.
Appears in 1 contract
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent (acting at the Direction of the Required Lenders) to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.36.14, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor other Loan Party or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages with respect to any Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, with respect to Mortgages, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and);
(ii) within forty-five (45) days (or within one hundred and eighty ninety (18090) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent (acting at the Direction of the Required Lenders) as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative AgentAgent or Collateral Agent (acting at the Direction of the Required Lenders), deliver to the Administrative Collateral Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Collateral Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Collateral Agent; provided, however, that there shall be no obligation to deliver to the Administrative Collateral Agent any environmental assessment report whose disclosure to the Administrative Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A 1.01A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A1.01A; and and
(ii) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than Holdings, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b6.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s Borrowers’ expense, subject to the provisions of the Collateral and Guarantee Requirement Requirement, the Guarantee and Security Principles and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon (i) the formation formation, incorporation or acquisition of any new direct or indirect Wholly-Owned wholly owned Material Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, (ii) the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a wholly owned Material Domestic Subsidiary as a Restricted Subsidiary or Subsidiary, (iii) any Subsidiary becoming a Wholly-Owned wholly owned Material Subsidiary, (in the case of each of the preceding clauses (i), (ii) and (iii), other than any Excluded Subsidiary), or (iv) an Excluded Subsidiary that is a Material Domestic ceasing to be an Excluded Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor Loan Party (except for real estate, which shall be governed by (b)) or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations it being understood that additional steps may be necessary to perfect such Lien)):
(i) within forty-five sixty (4560) days (or such greater number of days specified belowbelow or within one hundred and fifty (150) days in the case of documents listed in Section 6.13(b)) after such formation, incorporation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Collateral Agent a description of the Material Real Properties Properties, if any, owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Collateral Agent;
(B) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Collateral Agent Mortgages and the other items listed in Section 6.13(b), mutatis mutandis, with respect to any Material Real Property, supplements to the Security Agreement SupplementsAgreements, Intellectual Property Security Agreements (where applicable) and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Collateral Agent (consistent with the Mortgages, Security AgreementAgreements, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing a joinder to the Intercompany Note in the form of a duly executed signature page thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent of the such applicable Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC Uniform Commercial Code financing statements and delivery of stock stock, share and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority (subject to the Intercreditor Agreement) and perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect subject to all Deposit Accounts; andPermitted Liens;
(ii) within forty-five sixty (4560) days (or within one hundred and eighty fifty (180150) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified listed in Section 8.13(b6.13(b)) after the reasonable request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured PartiesLenders, of counsel for the Loan Parties or (as the case may be) the Secured Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a6.11(a) as the Administrative Agent may reasonably requestrequest (it being understood that with respect to any grant by a Loan Party of a security interest in the Equity Interests issued by an entity incorporated or organized under the laws of Australia, England and Wales, Singapore or the United States, if the entity issuing such Equity Interest is not organized under the laws of the same jurisdiction as such Loan Party, no legal opinion addressing laws of the jurisdiction in which such Loan Party is incorporated or organized shall be required by the Administrative Agent if such pledge is granted under a Collateral Document governed by the laws of the jurisdiction in which the issuer of such Equity Interest is incorporated); and
(iii) as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (iib) after the Restatement Effective Closing Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan PartyParty other than any Holdings Entity that is required to be pledged under the Collateral and Guarantee Requirement and the Guarantee and Security Principles, and if such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower Representative shall give notice thereof to the Administrative Collateral Agent and will take, or cause the relevant Loan Party, Party to take, the actions referred to in Section 8.13(b)6.13(b) within the time periods set forth therein.
(c) Notwithstanding anything any provision to the contrary contained hereinin this Agreement or any of the other Loan Documents, no assets (x) the obligations or liabilities of any entity that becomes a Singaporean Loan Party as under the Loan Documents to which it is a result party does not at any time extend to or apply to any obligation or liability of a Permitted Acquisition or (y) acquired from a third party by a such Singaporean Loan Party outside (the ordinary course of business, in each case, which were not included in the analysis “Affected Liabilities”) under the most recent Updated Inventory Appraisal Loan Documents which would, but for this proviso, cause such obligation or Field Examination and which is otherwise eligible for inclusion in the calculation liability to be unlawful or prohibited by Section 76 of the Borrowing Base Singapore Companies Act at that time, and on the basis that once such unlawfulness or prohibition ceases to apply to the Term Borrowing BaseAffected Liabilities on the completion of the whitewash procedures set out in Section 76 of the Singapore Companies Act for permitting the financial assistance constituted by the Loan Documents in respect of that Singaporean Loan Party, may the Affected Liabilities shall and shall continue to be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionrelevant Loan Document.
Appears in 1 contract
Samples: Syndicated Facility Agreement (DTZ Jersey Holdings LTD)
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon (i) the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an any Excluded Subsidiary) by any Loan PartyParty (including pursuant to any Division), (ii) the designation in accordance with Section 8.3, 8.3 of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Restricted Subsidiary being deemed a “Material Subsidiary” (including pursuant to any such designation pursuant to the proviso set forth in the definition of “Material Subsidiary”) or (iv) any Subsidiary (other than any Excluded Subsidiary) becoming a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary, and (y) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets (other than any Excluded Assets) held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five on or before the date that is ninety (4590) days after the formation, incorporation, acquisition, designation or other event occurred (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) ), cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under Loan Party pursuant to the Collateral and Guarantee Requirement to furnish duly execute and deliver to the Administrative Agent a description of Joinder Agreement:
(A) on or before the Material Real Properties owned date that is ninety (90) days after the formation, incorporation, acquisition, designation or other event occurred (or such longer period as the Administrative Agent may agree in its reasonable discretion), cause each such Subsidiary that is required to become a Loan Party pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Collateral Agent the following: Security Agreement Supplements, a joinder to the Intercompany Subordination Agreement, Intellectual Property Security Agreements (if applicable) and other Collateral Documents as reasonably requested by such Material Domestic Subsidiary and in detail form and substance reasonably satisfactory to the Administrative AgentCollateral Agent (consistent with the Guaranty and the Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Closing Date with respect to Loan Parties in the Covered Jurisdictions applicable to such Loan Party), in each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(B) within forty-five on or before the date that is ninety (4590) days (after the formation, incorporation, acquisition, designation or within one hundred and eighty (180) days other event occurred (or such longer period as the Administrative Agent may agree in its reasonable discretion) in in and subject to the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designationIntercreditor Agreement, cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent Security Agreement Supplements, Intellectual Property Security Agreements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor Loan Party pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Collateral Agent;
(DC) within forty-five on or before the date that is ninety (4590) days (after the formation, incorporation, acquisition, designation or within one hundred and eighty (180) days other event occurred (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the any applicable Material Domestic Subsidiary and each direct or indirect parent of the applicable Material Domestic such Subsidiary that is required to become a Guarantor Loan Party pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates to the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Collateral Agent (or in any representative of the Administrative Collateral Agent designated by it) valid first priority Liens (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts and Securities Accounts; and
(ii) within forty-five (45) days (or within one hundred and eighty (180) days (or substantially concurrently with the execution of such longer period as Collateral Documents, to the Administrative Agent may agree extent reasonably requested in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor writing by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties Parties, as applicable, reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) 8.11 as the Administrative Agent may reasonably request; and.
(iiib) without limiting the provisions of Section 8.12 and except as promptly as practicable after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to each Material Real Property, title reports, surveys and environmental assessment reports and appraisals (if required under FIRREAprovided in Section 8.11(c), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date reasonably satisfactory to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Date, promptly after upon the acquisition of any Material Real Property assets that are Collateral by the Borrower or any Loan Party, and such Material Real Property shall not already be Party (including pursuant to any Division) (other than assets constituting Collateral under a Collateral Document that becomes subject to a perfected the Lien pursuant created by such Collateral Document upon acquisition thereof (without limitation of the obligations to the Collateral and Guarantee Requirementperfect such Lien)), the Borrower shall give notice thereof to within ninety (90) days after written request by the Administrative Agent and will take, (or cause the relevant Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets longer period as the Administrative Agent may require agree in its Permitted Discretionreasonable discretion), all (i) take and cause any applicable Subsidiary to take whatever action (including the filing of UCC financing statements and delivery of stock and membership interest certificates to the results extent certificated) may be necessary in the reasonable opinion of the foregoing to be satisfactory to the Administrative Agent to vest in its Permitted Discretionthe Collateral Agent (or in any representative of the Collateral Agent designated by it) valid Liens required by the Collateral and Guarantee Requirement in such assets, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law).
Appears in 1 contract
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Covenant to Guarantee Obligations and Give Security. At (a) If as of the last day of any Measurement Period any Person becomes a Material Subsidiary, whether upon formation or acquisition or growth during such Measurement Period or the Borrower’s expense, subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) (x) upon the formation or acquisition re-designation of any new direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 8.3, of any existing direct or indirect Wholly-Owned Subsidiary that is a Material Domestic Subsidiary as a Restricted Subsidiary or any Subsidiary becoming a Wholly-Owned Subsidiary that is a the Borrower’s designation as referred to in the definition of “Material Domestic Subsidiary”, (y) upon the acquisition of any material assets by the Borrower will deliver, or any Subsidiary Guarantor or (z) with respect cause to any Subsidiary at the time it becomes a Loan Partybe delivered to, for any material assets held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to furnish to the Administrative Agent a description of the Material Real Properties owned by such Material Domestic Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(B) , as soon as practicable but in any event within forty-five (45) days (or within one hundred and eighty (180) 30 days (or such longer period as may be approved by the Administrative Agent may agree in its reasonable discretion) in in after the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, cause each such Material Domestic Subsidiary date that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver Borrower delivers the financial statements to the Administrative Agent Security Agreement Supplementspursuant to Section 6.01(a) or (b) for such Measurement Period, Intellectual Property Security Agreements and other security agreements and the following documents (includingcollectively, the documents listed in Section 8.13(b“Subsidiary Guarantor Deliverables”):
(i) a Security Joinder Agreement duly executed by such Subsidiary (with respect to Mortgages of any Material Real Propertyall schedules thereto appropriately completed), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(Cii) cause each such Material Domestic Subsidiary that is required to become (A) a Guarantor pursuant Security Joinder Agreement or supplement to the Collateral Security Agreement schedules, as appropriate, duly executed by each Loan Party that owns any Equity Interest in such Subsidiary (with all schedules thereto appropriately completed), and Guarantee Requirement to deliver any and all certificates representing Equity Interests (B) to the extent certificatedany of such Equity Interests constitutes a security under Article 8 of the Uniform Commercial Code, (x) that are required to be pledged pursuant to the Collateral certificates representing such Equity Interests and Guarantee Requirement(y) duly executed, accompanied by undated stock powers or other appropriate instruments powers of transfer executed assignment in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agentaffixed thereto;
(Diii) within forty-five Uniform Commercial Code financing statement naming such Subsidiary as “Debtor” and naming the Administrative Agent as “Secured Party”, to be filed in the applicable Uniform Commercial Code filing office necessary to perfect in favor of the Administrative Agent the Liens on the Collateral conferred under the Collateral Documents to the extent such Liens may be perfected by Uniform Commercial Code filings;
(45iv) days (current copies of the Organization Documents of such Subsidiary and resolutions of the board of directors, or within one hundred equivalent governing body, of such Subsidiary, together with such other documents and eighty (180) days (or such longer period certificates as the Administrative Agent or its counsel may agree in its reasonable discretionreasonably request relating to the organization, existence and good standing (or the local equivalent) in of such Subsidiary, the case of Mortgages and related documents specified in Section 8.13(b)) after such formation, acquisition or designation, (1) take and cause the applicable Material Domestic Subsidiary and each direct or indirect parent authorization of the applicable Material Domestic Subsidiary that is required transactions contemplated by the Loan Documents and any other legal matters relating to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgagessuch Subsidiary, the filing of UCC financing statements and delivery of stock and membership interest certificates to Loan Documents or the extent certificated) may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (subject to the Intercreditor Agreement) perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; andtransactions contemplated thereby;
(iiv) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.11(a) as the Administrative Agent may reasonably request; and
(iii) as promptly as practicable after the reasonable request therefor if requested by the Administrative Agent, deliver opinions of counsel to the Administrative Agent applicable Loan Parties and such Subsidiary with respect to each Material Real Property, title reports, surveys the documents delivered and environmental assessment reports the transactions contemplated by this Section 6.12 substantially similar in form and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey substance to the extent prepared as opinion(s) of a date reasonably satisfactory counsel delivered on the Closing Date pursuant to the Administrative Agent; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtainedSection 4.01(a); and
(vi) such documentation and other information requested by the Administrative Agent or any Lender in order to comply with requirements of the Act, applicable “know your customer” and anti-money laundering rules and regulations; provided, the foregoing shall not be required in connection with any Excluded Property.
(b) Each of the Loan Parties shall not open, maintain or otherwise have any deposit or other accounts (including securities accounts) at any bank or other financial institution, or any other account where money or securities are or may be deposited or maintained with any Person, other than (i) the Borrower shall obtain the security interests and Guarantees accounts set forth on Schedule 1.1A on or prior 6.12 and other accounts from time to time; provided that the dates corresponding to daily balance in any such security interests account does not exceed $1,000,000 and Guarantees set forth on Schedule 1.1A; and the aggregate daily balance in all such accounts does not exceed $5,000,000, (ii) after the Restatement Effective Date, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Party, and such Material Real Property shall not already be subject deposit accounts that are maintained at all times with depositary institutions as to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to which the Administrative Agent shall have received a Qualifying Control Agreement, (iii) deposit accounts that are held at Bank of America or any other Lender, as to which no Qualifying Control Agreement will be required, (iv) securities accounts that are maintained at all times with financial institutions as to which the Administrative Agent shall have received a Qualifying Control Agreement, (v) deposit accounts established solely as payroll accounts, employee wage and will takebenefit accounts, tax withholding accounts, escrow accounts, or cause the relevant Loan Partyfiduciary or trust accounts, to take, the actions referred to and (vi) zero balance accounts (all such accounts described in Section 8.13(b(b)(i) though (vi) being “Excluded Accounts”).
(c) Notwithstanding anything to the contrary contained herein, no assets (x) At any time upon request of any entity that becomes a Loan Party as a result of a Permitted Acquisition or (y) acquired from a third party by a Loan Party outside the ordinary course of business, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, as may be reasonably required by the Administrative Agent, from appraisers promptly execute and examiners reasonably satisfactory to the Administrative Agent deliver any and (B) all further instruments and documents and take all such other due diligence with respect to such assets action as the Administrative Agent may require deem reasonably necessary or desirable in its Permitted Discretionobtaining the full benefits of, all of or (as applicable) in perfecting and preserving the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted DiscretionLiens of, such guaranties, Security Joinder Agreements, and other security and pledge agreements.
Appears in 1 contract
Samples: Credit Agreement (TopBuild Corp)
Covenant to Guarantee Obligations and Give Security. At (a) Upon (x) the Borrower’s expense, subject to the provisions request of the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent to ensure that following the Collateral occurrence and Guarantee Requirement continues during the continuance of a Specified Default or (y) (i) the delivery of the report (the “Report”) required to be satisfied, including:
(adelivered pursuant to Section 6.02(i) (x) upon indicating the formation or acquisition of any new direct or indirect Wholly-Owned Domestic Subsidiary that is a Material Domestic Subsidiary (in each case, other than an Unrestricted Excluded Subsidiary), (ii) the delivery of a Compliance Certificate indicating that a Domestic Subsidiary previously determined to be an Immaterial Subsidiary or an Excluded Subsidiary is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, or (iii) the acquisition of any property by any Loan Party, and such property, in the designation judgment of the Administrative Agent, shall not already be subject to a perfected first priority security interest subject to Specified Statutory Liens in accordance favor of the Administrative Agent for the benefit of the Secured Parties, unless expressly excluded from being required to be the subject of such security interest by the terms of this Agreement or the terms of the Collateral Documents, then the Borrower shall, in each case at the Borrower’s expense:
(i) in connection with Section 8.3, the formation or acquisition of any existing direct or indirect Wholly-Owned a Domestic Subsidiary that is a Material Subsidiary (other than an Excluded Subsidiary) or the determination that any Domestic Subsidiary as a Restricted previously determined to be an Immaterial Subsidiary or any an Excluded Subsidiary becoming a Wholly-Owned is no longer an Immaterial Subsidiary or an Excluded Subsidiary, as applicable, within 10 Business Days after the delivery of the Report, cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary that is a Material Domestic Subsidiary, (y) upon the acquisition of any material assets by the Borrower or any a Domestic Subsidiary Guarantor or (z) with respect to any Subsidiary at the time it becomes a Loan Party, for any material assets held by such and not an Excluded Subsidiary (in each caseif it has not already done so), other than assets constituting Collateral under a Collateral Document that becomes subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the obligations duly execute and deliver to perfect such Lien)):
(i) within forty-five (45) days (or such greater number of days specified below) after such formation, acquisition or designation or, in each case, such longer period as the Administrative Agent may agree a guaranty or guaranty supplement, in its reasonable discretion:form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
(Aii) cause each within 5 Business Days after such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under request or after the Collateral and Guarantee Requirement to delivery of the Report or such Compliance Certificate, furnish to the Administrative Agent a description of the Material Real Properties owned real properties having a purchase price (or in the case of a Specified Default, fair market value) of $10,000,000 or more and, in the case of a Specified Default, other properties of the Loan Parties and their respective Subsidiaries so acquired or upon which the Administrative Agent does not have a valid, perfected Lien, unless expressly excluded from being required to be the subject of such security interest by such Material Domestic Subsidiary the terms of this Agreement or the terms of the Collateral Documents, in each case in detail reasonably satisfactory to the Administrative Agent;,
(Biii) within forty-five (45) days (10 Business Days after such request or within one hundred and eighty (180) days (after the delivery of the Report or such longer period as the Administrative Agent may agree in its reasonable discretion) in in the case of Mortgages Compliance Certificate, duly execute and related documents specified in Section 8.13(b)) after such formationdeliver, acquisition or designation, and cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement new Loan Party to duly execute and deliver deliver, to the Administrative Agent mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreements Supplements and other security agreements and documents (including, the documents listed in Section 8.13(b) with respect to Mortgages of any Material Real Property)agreements, as reasonably requested specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgagesincluding delivery of all Pledged Equity in and of such Subsidiary, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Restatement Effective Date), in each case granting Liens required by the Collateral and Guarantee Requirement;
(C) cause each such Material Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank (or any other documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Administrative Agent;
(D) within forty-five (45) days (or within one hundred and eighty (180) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents type specified in Section 8.13(b4.02(b)(iii)) after such formation), acquisition or designation, (1) take and cause securing payment of all the applicable Material Domestic Subsidiary and each direct or indirect parent Obligations of the applicable Material Domestic Subsidiary that is required Loan Party under the Loan Documents and constituting Liens on all such properties,
(iv) within 10 Business Days after such request or after the delivery of the Report or such Compliance Certificate, take, and cause such new Loan Party to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take take, whatever action (including the recording of Mortgagesmortgages, the filing of UCC Uniform Commercial Code financing statements statements, the giving of notices and the endorsement of notices on title documents, the delivery of stock and membership interest certificates to the extent certificatedflood zone determinations and/or flood insurance (as applicable)) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid first priority (and subsisting Liens on the properties purported to be subject to the Intercreditor Agreement) perfected Liens required by the Collateral mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements and Guarantee Requirementsecurity agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law) and (2) comply with the requirements of Section 8.12 with respect to all Deposit Accounts; and,
(iiv) within forty-five (45) days (10 Business Days after such request or within one hundred and eighty (180) days (after the delivery of the Report or such longer period as the Administrative Agent may agree in its reasonable discretion) in the case of Mortgages and related documents specified in Section 8.13(b)) after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion)Compliance Certificate, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of an a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, as to such mortgages, deeds of trust and trust deeds being legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms, as to the matters set forth contained in this Section 8.11(aclause (iv) above, as to such recordings, filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such mortgaged properties, and as to such other matters as the Administrative Agent may reasonably request; and,
(iiivi) as promptly as practicable after such request or after the reasonable delivery of the Report or such Compliance Certificate, deliver, upon the request therefor by of the Administrative AgentAgent in its reasonable discretion, deliver to the Administrative Agent with respect to each Material Real Propertyparcel of real property acquired for $10,000,000 or more (except that no minimum amount shall apply in the case of a Specified Default) owned by the entity that is the subject of such request, formation or acquisition title reportspolicies, surveys and environmental assessment reports reports, each in scope and appraisals (if required under FIRREA), flood certifications under Regulation H of the Federal Reserve Board, provided that the Administrative Agent may in its reasonable discretion accept any such existing report or survey to the extent prepared as of a date form reasonably satisfactory to the Administrative Agent; , provided, however, that there shall be no obligation to deliver to the Administrative Agent extent that any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower Loan Party or one any of its Subsidiaries, where, despite the commercially reasonable efforts Subsidiaries shall have otherwise received any of the Borrower foregoing items with respect to obtain such consentreal property, such consent cannot be obtained; and
(i) the Borrower shall obtain the security interests and Guarantees set forth on Schedule 1.1A on or prior to the dates corresponding to such security interests and Guarantees set forth on Schedule 1.1A; and (ii) after the Restatement Effective Dateitems shall, promptly after the acquisition of any Material Real Property by the Borrower or any Loan Partyreceipt thereof, and such Material Real Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof delivered to the Administrative Agent, and
(vii) promptly execute and deliver any and all further instruments and documents and take all such other actions as required by the Security Agreement and at any time and from time to time as the Administrative Agent and will takemay deem necessary or desirable in obtaining the full benefits of, or cause in perfecting and preserving the relevant Liens of, such guaranties, mortgages, deeds of trust, trust deeds, deeds to receive debt, pledges, assignments, Security Agreement Supplements and security agreements.
(b) Any Subsidiary or Excluded Joint Venture that is not a Guarantor that becomes a guarantor with respect to any Material Debt of any Loan Party shall comply with Section 6.12(a) as if it were a newly formed Domestic Subsidiary of a Loan Party, to take, the actions referred to in Section 8.13(b).
(c) Notwithstanding the foregoing or anything to the contrary else contained hereinin this Agreement or any other Loan Document, no assets unless (x) of any entity that becomes a Loan Party as a result of a Permitted Acquisition Specified Default has occurred and is continuing or (y) acquired from a third party by a Loan Party outside has acquired material Intellectual Property (as defined in the ordinary course Security Agreement) during the period covered by the applicable Report, in no event shall the Borrower or any of businessits Subsidiaries be required after the Restatement Closing Date to execute, prepare, deliver or otherwise provide any IP Security Agreement Supplements (whether in connection with the formation or acquisition of any new direct or indirect Domestic Subsidiary or the acquisition or creation of any property by any Loan Party) or take any similar or other further action in respect of any Intellectual Property (as defined in the Security Agreement).
(d) Notwithstanding the foregoing or anything else contained in this Agreement or any other Loan Document, the Action Sports Group Companies shall not be required to comply with this Section 6.12, and the Loan Parties shall not be required to comply with this Section 6.12 in respect of any equity interests held by any Loan Party in any Action Sports Group Company, in each case, which were not included in the analysis under the most recent Updated Inventory Appraisal until November 30, 2016 (or Field Examination and which is otherwise eligible for inclusion in the calculation of the Borrowing Base or the Term Borrowing Base, may be included in the calculation of the Borrowing Base or the Term Borrowing Base unless and until the Administrative Agent has completed or received, in any case at the expense of the Borrower (without regard to, or counting against, any limitations on expense reimbursement or the number of Field Examinations or Inventory appraisals that may be conducted during any period, as contained in Section 7.4) (A) Inventory appraisals and Field Examinations, such later date as may be reasonably required agreed by the Administrative Agent, from appraisers and examiners reasonably satisfactory to the Administrative Agent and (B) such other due diligence with respect to such assets as the Administrative Agent may require in its Permitted Discretion, all of the results of the foregoing to be satisfactory to the Administrative Agent in its Permitted Discretionsole discretion).
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