Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that: (a) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens; (b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; (c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and (d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 2 contracts
Samples: Credit Agreement (Eclipsys Corp), Credit Agreement (Eclipsys Corp)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries Promptly upon (and in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(aany event within 30 days after) Concurrently with the creation or direct acquisition of any new Subsidiary (other than (i) an Excluded Subsidiary or indirect acquisition (ii) a Stimulus Recipient Subsidiary if and for so long as the terms and conditions of any Permitted Stimulus Indebtedness or any grant received by the Borrower thereofsuch Stimulus Recipient Subsidiary from any Stimulus Source Agency prohibit, or it is reasonably anticipated that such terms and conditions will prohibit, such Stimulus Recipient Subsidiary from entering into a Joinder Agreement) by any Loan Party or any Subsidiary of any Loan Party, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which such new Wholly Owned Subsidiary (i) shall become a party hereto as a Guarantor and (ii) shall become a party to the Pledge and Security Agreement and shall deliver to Administrative Agent all such other Security Documents and such legal opinions as Administrative Agent shall reasonably request, and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles for the Secured Obligations (provided that no assets of a Foreign Subsidiary or a Foreign Subsidiary Holding Company shall be required to secure the Obligations by pledge or otherwise); and other personal property Promptly upon (and in any event within 30 days after (or such later date as Collateral for Administrative Agent shall agree to in writing in its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(bsole discretion)) Concurrently with the creation or acquisition of a new Subsidiary (other than a Stimulus Recipient Subsidiary if and for so long as the terms and conditions of any new Wholly Owned Permitted Stimulus Indebtedness or any grant received by such Stimulus Recipient Subsidiary from any Stimulus Source Agency prohibit, or it is reasonably anticipated that such terms and conditions will prohibit, the Capital Stock Equity Interests in such Stimulus Recipient Subsidiary from being pledged to Administrative Agent or require or it is reasonably anticipated will require that such Equity Interests be pledged to the applicable Stimulus Source Agency) by any Loan Party or any Subsidiary of which is directly any Loan Party, all capital stock or other equity interest in such Subsidiary owned by any Loan Party or any Subsidiary of any Loan Party will be pledged to Administrative Agent as follows (provided that any equity interests in any Foreign Subsidiary or Foreign Subsidiary Holding Company owned by a Loan Party or another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company) which, when aggregated with all of the Borrowerother shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the Borrower total equity interests entitled to vote of such Subsidiary being pledged to Administrative Agent, shall not be pledged; provided further that no assets of a Foreign Subsidiary or Foreign Subsidiary Holding Company, or any Subsidiary of either thereof or any Equity Interest issued by any such Subsidiary of either thereof, shall be required to secure the Obligations by pledge or otherwise): (i) if a Loan Party directly owns any of the capital stock of or other equity interest in such new Subsidiary, such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all such capital stock or other equity interest shall be pledged to Administrative Agent, together with the certificates evidencing such capital stock or other equity interest and undated stock or transfer powers duly executed in blank and such legal opinions as Administrative Agent may reasonably request; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company), to the extent not already covered by the Pledge and Security Agreement, such other Subsidiary will execute and deliver to Administrative Agent an appropriate joinder, amendment or supplement to the Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock or other equity interest and undated stock or transfer powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the legal opinions as Administrative Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) may reasonably request. As promptly as reasonably possible, the Borrower Loan Parties and its their respective Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only . Administrative Agent may elect by written notice to Permitted Liens; and
Borrower to exempt (di) Each newly formed any new Subsidiary which is not wholly-owned directly or acquired Wholly Owned indirectly by the Loan Parties and/or (ii) any Loan Party that owns capital stock or other equity interest in such Subsidiary shall hold assets located solely in, and shall be organized under from the laws requirements of all or any jurisdiction of, portion of this Subsection 2.12 if it determines in its sole discretion that the United States costs to the Loan Parties of Americacomplying with all or such portion of this Subsection 2.12 exceed the relative benefit afforded the Secured Parties.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.68.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority perfected Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;; provided, however, that the pledge of any assets located outside of the United States by Lason International shall be required only upon demand of the Agent as provided in SECTION 6.14; and provided further that if any acquired entity is merged into the Borrower or any Subsidiary Guarantor in connection with such Acquisition, the acquired and merged entity shall not be required to become a Subsidiary Guarantor.
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Lason Inc)
Creation or Acquisition of Subsidiaries. (A) Subject to the provisions of SECTION 8.6Subsection 3.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseSubsidiaries, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
that concurrently with (aand in any event within ten Business Days thereafter) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary, all the capital stock of or other equity interest in such new Subsidiary will be pledged to the Capital Stock Administrative Agent as follows (provided that any equity interests in any new foreign Subsidiary formed or acquired after the date hereof that constitutes a “controlled foreign corporation” under Section 956 of the IRC which, when aggregated with all of the other shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the total equity interests of such Subsidiary being pledged to Administrative Agent, need not be pledged): (i) if Borrower directly owns any of the capital stock of or other equity interest in such new Subsidiary, Borrower will Credit Agreement/Atlantic Tele-Network, Inc. execute and deliver to the Administrative Agent any amendment or supplement to the Security Agreement as Administrative Agent may reasonably request pursuant to which all such capital stock or other equity interest shall be pledged to the Administrative Agent, together, if applicable, with the certificates evidencing such capital stock and undated stock powers duly executed in blank; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is directly owned by the a wholly-owned direct or indirect Subsidiary of Borrower, to the Borrower extent not already covered by the Pledge Agreement, such other Subsidiary will execute and deliver to the Administrative Agent (except in connection with a Permitted Acquisition where the stock is pledged to another Person in connection with such acquisition or any debt assumed thereunder) an appropriate joinder, amendment or supplement to the Borrower Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) . As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject Promptly upon (and in any event within 10 days after (or such later date as Administrative Agent shall agree to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(awriting in its sole discretion) Concurrently with the creation or direct acquisition of any new Subsidiary (other than an Excluded Subsidiary) by any Loan Party or indirect acquisition by the Borrower thereofany Subsidiary of any Loan Party, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which such new Wholly Owned Subsidiary (i) shall become a party hereto as a Guarantor and (ii) shall become a party to the Pledge and Security Agreement and shall deliver to Administrative Agent all such other Security Documents and such legal opinions as Administrative Agent shall reasonably request relating to such new Subsidiary, and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipmentfor the Secured Obligation (provided that no assets of an Excluded Subsidiary, general intangibles a Foreign Subsidiary or a Foreign Subsidiary Holding Company shall be required to secure the Obligations by pledge or otherwise). Promptly upon (and other personal property in any event within 10 days after (or such later date as Collateral for Administrative Agent shall agree to in writing in its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(bsole discretion) Concurrently with the creation or acquisition of any new Wholly Owned Excluded Subsidiary the Capital Stock by any Loan Party or any Subsidiary of which is directly owned a Loan Party, unless otherwise determined by the BorrowerAdministrative Agent in its sole discretion, the Borrower such new Excluded Subsidiary will execute and deliver to Administrative Agent a Negative Pledge Agreement in form and substance satisfactory to Administrative Agent in its sole discretion. Promptly upon (and in any event within 10 days after (or such later date as Administrative Agent shall agree to in writing in its sole discretion)) the creation or acquisition of a new Subsidiary by any Loan Party or any Subsidiary of any Loan Party, all capital stock or other equity interest in such Subsidiary owned by any Loan Party or any Subsidiary of any Loan Party will be pledged to Administrative Agent as follows (provided that any equity interests in any Foreign Subsidiary or Foreign Subsidiary Holding Company owned by a Loan Party or another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company) which, when aggregated with all of the other shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the total equity interests entitled to vote of such Subsidiary being pledged to Administrative Agent, shall not be pledged; provided further that no assets of a Foreign Subsidiary or Foreign Subsidiary Holding Company, or any Subsidiary of either thereof or any Equity Interest issued by any such Subsidiary of either thereof, shall be required to secure the Obligations by pledge or otherwise): (i) if a Loan Party directly owns any of the capital stock of or other equity interest in such new Subsidiary, such Loan Party will execute and deliver to Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all such capital stock or other equity interest shall be pledged to Administrative Agent, together with the certificates evidencing such capital stock or other equity interest and undated stock or transfer powers duly executed in blank and such legal opinions as Administrative Agent may reasonably request; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company), to the extent not already covered by the Pledge and Security Agreement, such other Subsidiary will execute and deliver to Administrative Agent an appropriate joinder, amendment or supplement to the Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock or other equity interest and undated stock or transfer powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the legal opinions as Administrative Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security may reasonably request. Credit Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) /Shenandoah Telecommunications Company As promptly as reasonably possible, the Borrower Loan Parties and its their respective Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)) regarding such new Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower The Company may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within 10 Business Days after) the creation or direct or indirect acquisition by the Borrower Company thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent Investors (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower Company under this Agreement and the other Credit Investment Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Collateral Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens, and (iii) unless the Required Investors agree otherwise in writing, a mortgage with respect to any owned or leased interests of such new Subsidiary in real property;
(b) Concurrently with (and in any event within 10 Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the BorrowerCompany, the Borrower Company will execute and deliver to the Collateral Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of a Lien on the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary owned by the Company shall be granted to the Borrower shall be pledged to the AgentInvestors, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any (unless such promissory notes duly endorsed in blankCapital Stock is being pledged to the Senior Lender, as contemplated by the Intercreditor Agreement); and concurrently with (and in any event within ten Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Collateral Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of a Lien on the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged granted to the AgentInvestors, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any (unless such promissory notes duly endorsed in blankCapital Stock is being pledged to the Senior Lender, as contemplated by the Intercreditor Agreement);
(c) Concurrently with (and in any event within 10 Business Days after) the creation or acquisition of any new Subsidiary, the Company will deliver to the Investors:
(i) a written legal opinion of counsel to such Subsidiary addressed to the Investors, in form and substance reasonably satisfactory to the Required Investors and their counsel, which shall cover such matters relating to such Subsidiary and the creation or acquisition thereof incident to the transactions contemplated by this Agreement and this Section 6.8 and the other Investment Documents as set forth in the legal opinion of counsel delivered to the Investors on the Closing Date;
(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such Subsidiary, certified as of a date that is acceptable to the Required Investors by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary as of a date that is acceptable to the Required Investors by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and (D) copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Sections 6.8(a) and 6.8(b), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Required Investors;
(iii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such Subsidiary in each jurisdiction in which such Subsidiary is incorporated or organized, has a place of business or maintains any assets, which report shall show no Liens on its assets (other than Permitted Liens);
(iv) a certificate of the secretary or an assistant secretary of such Subsidiary as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Sections 6.8(a) and 6.8(b);
(v) a certificate as to the solvency of such Subsidiary, addressed to the Investors, dated as of the date of creation or acquisition of such Subsidiary and in form and substance reasonably satisfactory to the Required Investors;
(vi) evidence satisfactory to the Required Investors that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such Subsidiary or be caused thereby; and
(vii) a certificate executed by an Authorized Officer of each of the Company and such Subsidiary, which shall constitute a representation and warranty by the Company and such Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably satisfactory to the Required Investors; and
(d) As promptly as reasonably possible, the Borrower Company and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the AgentRequired Investors, as the Agent Required Investors may reasonably request in connection therewith and will take such other action as the Agent Required Investors may reasonably request to create in favor of the Agent Collateral Agent, for the benefit of the Investors, a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above; provided that, subject with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to Permitted Liens; and
the extent) that (dy) Each newly formed such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary or acquired Wholly Owned (z) such pledge exceeds 65% of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than 65% of the voting Capital Stock of such Foreign Subsidiary shall hold assets located solely inwould not cause any materially adverse tax consequences to the Company, and shall (ii) such Foreign Subsidiary will not be organized under required to become a Subsidiary Guarantor if doing so would cause any materially adverse tax consequences to the laws Company. Notwithstanding any provision in this section to the contrary, it is acknowledged that the Investors will have a second-priority Lien on after-acquired assets, junior to the Lien of any jurisdiction of, the United States of AmericaSenior Lender.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject Promptly upon (and in any event within 30 days after (or such later date as Administrative Agent shall agree to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(awriting in its sole discretion)) Concurrently with the creation or direct acquisition of any new Subsidiary (other than an Excluded Subsidiary or indirect acquisition a Material Foreign Subsidiary) by the Borrower thereofany Loan Party or any Subsidiary (other than an Excluded Subsidiary or a Material Foreign Subsidiary) of any Loan Party, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which such new Wholly Owned Subsidiary (i) shall become a party hereto as a Guarantor and (ii) shall become a party to the Pledge and Security Agreement and shall deliver to Administrative Agent all such other Security Documents as required by the terms of the Pledge and Security Agreement or this Agreement and such customary legal opinions as Administrative Agent shall reasonably request, and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles for the Secured Obligations; and other personal property Promptly upon (and in any event within 30 days after (or such later date as Collateral for Administrative Agent shall agree to in writing in its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(bsole discretion)) Concurrently with the creation or acquisition of a new Subsidiary (other than an Excluded Subsidiary) by any new Wholly Owned Loan Party or any Subsidiary the Capital Stock (other than an Excluded Subsidiary) of which is directly any Loan Party, all capital stock or other equity interest in such Subsidiary owned by any Loan Party or any Subsidiary (other than an Excluded Subsidiary) of any Loan Party will be pledged to Administrative Agent as follows (provided that any equity interests in any Material Foreign Subsidiary which, when aggregated with all of the Borrowerother shares of equity interests in such Material Foreign Subsidiary pledged to Administrative Agent, would result in more than 65% of the Borrower total equity interests entitled to vote of such Material Foreign Subsidiary being pledged to Administrative Agent, shall not be pledged): (i) if a Loan Party directly owns any of the capital stock of or other equity interest in such new Subsidiary, such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all such capital stock or other equity interest shall be pledged to Administrative Agent, together with any certificates evidencing such capital stock or other equity interest and undated stock or transfer powers duly executed in blank as Administrative Agent may reasonably request; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary (other than an Excluded Subsidiary), to the extent not already covered by the Pledge and Security Agreement, such other Subsidiary will execute and deliver to Administrative Agent an appropriate joinder, amendment or supplement to the Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock or other equity interest and undated stock or transfer powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of as Administrative Agent may reasonably request. Administrative Agent may elect by notice to Borrower to exempt (i) any new Wholly Owned Subsidiary the Capital Stock of which is not wholly-owned directly or indirectly by the Loan Parties and/or (ii) any Loan Party that owns capital stock or other equity interest in such Subsidiary from the requirements of all or any portion of this Subsection 2.12 if it determines in its sole discretion that the costs to the Loan Parties of complying with all or such portion of this Subsection 2.12 exceed the relative benefit afforded the Secured Parties. Notwithstanding the above, so long as any Partnership is not wholly-owned directly or indirectly by another Wholly Owned Subsidiary (the "Parent Subsidiary")Loan Parties, the Parent Subsidiary will such Partnership shall not be required to execute and deliver to the Administrative Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. As of the Closing Date, the Subsidiary Guarantors of the Borrower are as listed on SCHEDULE 5.9. Subject to the provisions of SECTION 8.67.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries Subsidiary Guarantors of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided thatthat with respect to each such Subsidiary that has assets at any time in excess of $100,000, has executed or is likely to execute a Service Agreement, or is or will be engaged in active business operations:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property the Collateral as Collateral collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent all or a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all portion of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.Stock
Appears in 1 contract
Samples: Credit Agreement (Orthalliance Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of --------------------------------------- SECTION 8.68.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided -------- that:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Non- Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a Subsidiaries Guaranty (or an appropriate joinder to the Subsidiary an existing Subsidiaries Guaranty), pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a Subsidiaries Pledge and Security Agreement (or an appropriate joinder to the Subsidiary an existing Subsidiaries Pledge and Security Agreement), pursuant to which such new Wholly Owned Subsidiary shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Subsidiaries Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an appropriate amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all of the Capital Stock of such new Subsidiary owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Subsidiary all or a portion of the Capital Stock of which is directly owned by another Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Administrative Agent an appropriate joinder, amendment or supplement to the Subsidiaries Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Parent Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all provided that no more -------- than 65% of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Foreign Subsidiary shall be required to be pledged pursuant to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;this subsection (b)); and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above. In the event of a sale or other disposition of the Capital Stock of any Subsidiary Guarantor in a transaction expressly permitted by or pursuant to this Agreement or any other applicable Credit Document, subject only such Subsidiary Guarantor shall be released from its obligations under the applicable Subsidiaries Guaranty, Subsidiaries Pledge and Security Agreement and any other Security Documents to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned which it is a party, the security interest of the Administrative Agent in the Collateral of such Subsidiary Guarantor pledged thereunder shall hold assets located solely inbe released, and shall be organized under in connection therewith the laws Administrative Agent, at the request and expense of any jurisdiction ofthe Borrower, will execute and deliver to such Subsidiary Guarantor such documents and instruments evidencing such release or termination as the United States of AmericaBorrower may reasonably request.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days after) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyGuaranty Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary GuarantyGuaranty Agreement, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction counsel, certified copies of organization of each such new Wholly Owned Subsidiaryits organizational documents, resolutions, lien searches and other customary items), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above; provided that, subject with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to Permitted Liens; and
the extent) that (dy) Each newly formed such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary or acquired Wholly Owned (z) such pledge exceeds sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary shall hold assets located solely inwould not cause any adverse tax consequences to the Borrower (other than that which would be de minimis), and (ii) such Foreign Subsidiary will not be required to become a Subsidiary Guarantor or become a party to the Security Agreement (and the documents, certificates, opinions and other items required under Section 6.10(c) shall not be organized under required with respect to such Foreign Subsidiary) if doing so would cause adverse tax consequences to the laws of any jurisdiction of, the United States of AmericaBorrower (other than that which would be de minimis).
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiaryand in any event within ten (10) will execute and deliver to the Agent (iBusiness Days thereafter) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Shared Collateral Pledge and Security Agreement or the Pledge Agreement, as applicable, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and from and after the Note Redemption Closing Date concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(cb) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 11.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries (including Excluded Subsidiaries) in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such that is not designated as an Excluded Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall, grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLiens and (iii) a Mortgage with respect to any real property owned by such Subsidiary (or a landlord lien waiver with respect to any real property leased by such Subsidiary), together with all Mortgaged Property Support Documents; provided, however, that in the event any real property owned by such Subsidiary has an appraised or book value of $750,000 or less, a Mortgage shall only be required upon the request of the Administrative Agent or the Required Lenders;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary (including any Excluded Subsidiary) all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "“Parent Subsidiary"”), the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries (including all Excluded Subsidiaries) will deliver any such other documents, certificates and opinions (including opinions, and opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary (including an Excluded Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within fifteen (15) calendar days after) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent Administrative Agent, for the benefit of the Lenders, a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within thirty (30) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within thirty (30) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) Concurrently with (and in any event within thirty (30) calendar days thereafter) the creation or acquisition of any new Subsidiary, the Borrower will deliver to the Administrative Agent:
(i) a written legal opinion of counsel to such new Subsidiary (the “New Guarantor”) addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative Agent and its counsel, which shall cover such matters relating to such New Guarantor and the creation or acquisition thereof incident to the transactions contemplated by this Agreement and this Section 6.9 and the other Credit Documents as set forth in the legal opinion of counsel delivered to the Administrative Agent and the Lenders on the Closing Date;
(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such New Guarantor certified as of a date that is acceptable to the Administrative Agent by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor, (B) a copy of the bylaws or similar organizational document of such New Guarantor certified on behalf of such New Guarantor as of a date that is acceptable to the Administrative Agent by the corporate secretary or assistant secretary of such New Guarantor, (C) an original certificate of good standing for such New Guarantor issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor and (D) copies of the resolutions of the Board of Directors and, if required, stockholders or other equity owners of such New Guarantor authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Sections 6.9(a) and 6.9(b), certified on behalf of such New Guarantor by an Authorized Officer of such New Guarantor, all in form and substance reasonably acceptable to the Administrative Agent;
(iii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such New Guarantor in each jurisdiction in which such New Guarantor is incorporated or organized, has a place of business or keeps any material property, which report shall show no Liens on such property (other than Permitted Liens);
(iv) a certificate on behalf of such New Guarantor of the corporate secretary or assistant secretary of such New Guarantor as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Sections 6.9(a) and 6.9(b);
(v) a Solvency Certificate for such New Guarantor, addressed to the Administrative Agent and the Lenders dated as of the date of creation or acquisition of such New Guarantor;
(vi) evidence reasonably satisfactory to the Administrative Agent that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such New Guarantor or be caused thereby; and
(vii) a certificate executed on behalf of the Borrower and such New Guarantor by an Authorized Officer of each of the Borrower and such New Guarantor, which shall constitute a representation and warranty by the Borrower and such New Guarantor as of the date of the creation or acquisition of such New Guarantor that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably acceptable to the Administrative Agent.
(d) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Agent Administrative Agent, for the benefit of the Lenders, a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above; provided that, subject with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to Permitted Liens; and
the extent) that (dx) Each newly formed such Foreign Subsidiary (together with its direct and indirect Subsidiaries, on a consolidated basis) does not constitute five percent (5%) of consolidated revenues or acquired Wholly Owned total assets of the Borrower and its Subsidiaries, (y) such Foreign Subsidiary shall hold assets located solely inis a Subsidiary of a Foreign Subsidiary or (z) such pledge exceeds sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary would not cause any adverse tax consequences to the Borrower, and (ii) such Foreign Subsidiary will not be required to become a Subsidiary Guarantor if doing so would cause adverse tax consequences to the Borrower; provided that if, at any time, all Foreign Subsidiaries that are direct Subsidiaries of the Borrower or Domestic Subsidiaries and whose Capital Stock is not pledged to the Administrative Agent represent at such time (together with their respective direct and indirect Subsidiaries, on a consolidated basis) fifteen percent (15%) or more of the of the consolidated revenues or the total assets of the Borrower and its Subsidiaries taken as a whole, then the Borrower shall pledge or cause to be organized under pledged to the laws Administrative Agent the Capital Stock of any jurisdiction of, one or more such Foreign Subsidiaries (but subject to the United States of America65% limitation set forth above) to the extent necessary to reduce such percentage below 15%.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject The Borrower shall not, nor shall it permit any of its Subsidiaries to, create or acquire any Subsidiary (other than Subsidiaries existing on the Closing Date and disclosed pursuant to Section 8.19 hereto) unless (a) one hundred percent (100%) of the Capital Stock of such Subsidiary is owned by the Borrower or a Guarantor, (b) prior to the provisions formation or acquisition of SECTION 8.6such Subsidiary, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseshall notify the Administrative Agent thereof, and the Wholly Owned Subsidiaries (c) within ten (10) days of the Borrower may create formation or acquire new Wholly Owned Subsidiariesacquisition of such Subsidiary, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each or such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent shall (i) a joinder take all steps as may be necessary or advisable in the reasonable opinion of the Administrative Agent to pledge to the Subsidiary GuarantyAdministrative Agent, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee for the payment in full benefit of the Obligations of the Borrower under this Agreement and the other Credit DocumentsLenders, and on a perfected, first-priority basis (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(bLiens entitled to priority under applicable law) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such a Pledge Agreement or other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), pledge agreement in form and substance reasonably satisfactory to the Administrative Agent, as which such Pledge Agreement or other pledge agreement shall be a Security Document hereunder (provided, however, that the Agent may reasonably request Borrower or such Guarantor shall in connection therewith and will take such other action as the Agent may reasonably request no event be required to create in favor pledge more than sixty-five percent (65%) of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Voting Stock of any Subsidiary shall hold assets located solely in, and shall be organized under the laws of a jurisdiction other than the United States of America or a state or other subdivision of the United States of America or any Capital Stock constituting Excluded Collateral), and (ii) cause such Subsidiary (unless such Subsidiary is organized under the laws of a jurisdiction of, other than the United States of America or a state or other subdivision of the United States of America) to guaranty all of the Obligations hereunder pursuant to a Guaranty, which such Guaranty shall be a Security Document hereunder, and take all steps as may be necessary or advisable in the reasonable opinion of the Administrative Agent to grant to the Administrative Agent, for the benefit of the Lenders, a first priority, perfected security interest (subject only to Permitted Liens entitled to priority under applicable law) in substantially all of its assets (other than Excluded Collateral) as collateral security for such Guaranty, pursuant to a Security Agreement and such other security documents, mortgages, pledges and other documents in form and substance reasonably satisfactory to the Administrative Agent, each of which documents shall be Security Documents hereunder.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Buca Inc /Mn)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 5.8, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, ; provided that:
(a) Concurrently with (and in any event within ten Business Days after) the creation or direct or indirect acquisition by the Borrower thereof, (i) each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent Lender (iA) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, Documents and (iiB) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent Lender a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with , and the creation Borrower will, or acquisition of any new Wholly Owned will cause the parent Subsidiary that owns the Capital Stock of which is directly owned by the Borrowersuch new Subsidiary to, the Borrower will execute and deliver to the Agent Lender an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the AgentLender, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank blank;
(b) Concurrently with (and in any such promissory notes duly endorsed in blank; and concurrently with event within 10 Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary Borrower will execute and deliver to the Agent Lender:
(i) (A) a joindercopy of the certificate of incorporation (or other charter documents) of such Subsidiary, amendment or supplement (certified as applicable) of a date that is acceptable to the Lender by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary Pledge as of a date that is acceptable to the Lender by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and Security Agreement(D) copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Section 5.9(a), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Lender;
(ii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such Subsidiary in each jurisdiction in which all such Subsidiary is incorporated or organized, has a place of business or maintains any assets, which report shall show no Liens on its assets (other than Permitted Liens);
(iii) a certificate of the Capital Stock secretary or an assistant secretary of such new Wholly Owned Subsidiary as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Section 5.9(a);
(iv) a certificate as to the solvency of such Subsidiary, addressed to the Lender, dated as of the date of creation or acquisition of such Subsidiary and any promissory notes from such new Wholly Owned Subsidiary in form and substance reasonably satisfactory to the Parent Subsidiary shall be pledged Lender;
(v) evidence satisfactory to the AgentLender that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such Subsidiary or be caused thereby; and
(vi) a certificate executed by an Authorized Officer of each of the Borrower and such Subsidiary, together with which shall constitute a representation and warranty by the certificates evidencing Borrower and such Capital Stock Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;substance reasonably satisfactory to the Lender; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the AgentLender, as the Agent Lender may reasonably request in connection therewith and will take such other action as the Agent Lender may reasonably request to create in favor of the Agent Lender a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
, concurrently with (aand in any event within ten (10) Concurrently with Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a Subsidiary Guaranty, substantially in the form attached hereto as Exhibit E, or a joinder to the Subsidiary Guarantythereto, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents. Notwithstanding the foregoing, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which any such new Wholly Owned Subsidiary shall grant be exempt from providing a Subsidiary Guaranty for so long as such new Subsidiary is an Insignificant Subsidiary. If a Subsidiary is deemed initially to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrowerbe an Insignificant Subsidiary, the Borrower will execute continue to monitor whether such Subsidiary is an Insignificant Subsidiary, which monitoring shall include without limitation, calculating whether such Subsidiary satisfies clauses (ii) and deliver to (iii) of the Agent an amendment or supplement to definition of “Insignificant Subsidiary” within ten (10) Business Days after the Borrower Pledge is required to deliver the financial information under Section 6.1(a) and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"b), the Parent as applicable. Within ten (10) Business Days after such Subsidiary fails to be an Insignificant Subsidiary, such Subsidiary will execute and deliver to the Administrative Agent a joinderSubsidiary Guaranty, amendment substantially in the form attached hereto as Exhibit E, or supplement (as applicable) to the Subsidiary Pledge and Security Agreementa joinder thereto, pursuant to which all such Subsidiary shall guarantee the payment in full of the Capital Stock Obligations of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower under this Agreement and its Subsidiaries will deliver any such the other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.Credit Documents
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Sections 7.9 and 8.5, the Borrower Credit Parties or their Wholly Owned Subsidiaries may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such any Credit Party of any new Wholly Owned Domestic Subsidiary (unless other than a De Minimis Subsidiary), (i) such Credit Party will cause such Domestic Subsidiary is a Designated Non-Guarantor Subsidiary) will to execute and deliver to the Collateral Agent (i) a joinder to the Subsidiary GuarantyJoinder Agreement, pursuant to which such new Wholly Owned Domestic Subsidiary shall become a guarantor thereunder party hereto and shall agree to guarantee the payment in full of the Credit Party Obligations of the Borrower under this Credit Agreement and the other Credit Documents, and (ii) a joinder to the such Credit Party and/or any applicable Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Collateral Agent a Pledge and Security Agreement or an amendment or supplement to the Borrower an existing Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Domestic Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Collateral Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and (iii) such Credit Party or applicable Subsidiary will execute and deliver Intercompany Notes, as appropriate, and such Intercompany Notes shall be delivered to the Collateral Agent, together with duly executed allonges in form and substance satisfactory to the Collateral Agent.
(b) Concurrently with (and in any such promissory notes duly endorsed in blank; and concurrently with event within ten Business Days thereafter) the creation or direct or indirect acquisition by any Credit Party of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned first-tier Foreign Subsidiary (the "Parent other than a De Minimis Subsidiary"), the Parent Subsidiary such Credit Party will execute and deliver to the Collateral Agent a joinder, Pledge and Security Agreement or an amendment or supplement (as applicable) to the Subsidiary an existing Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Foreign Subsidiary shall be pledged to the Collateral Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank (or such other documents, instruments and other evidence as the Collateral Agent shall require in order to perfect its security interest (or the equivalent thereof under applicable Law of the relevant foreign jurisdiction) in such Capital Stock); provided that no more than 65% of the Capital Stock of any Foreign Subsidiary shall be required to be pledged to the Collateral Agent if the pledge of more than 65% thereof would, in the good faith judgment of the Borrower, result in adverse tax consequences to the Borrower or would be unlawful for such promissory notes duly endorsed in blank;Foreign Subsidiary.
(c) As promptly as reasonably possible, the Borrower Credit Parties and its their Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary, including any new Foreign Subsidiary, if applicable and requested), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the either Agent may reasonably request to create in favor of the Collateral Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above. Nothing contained in this Section, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely inhowever, and shall be organized under deemed to permit the laws creation or acquisition by any Credit Party or any of its Subsidiaries, directly or indirectly, of any jurisdiction of, the United States of AmericaSubsidiary not expressly permitted under Section 8.5.
Appears in 1 contract
Samples: Credit Agreement (Orthodontic Centers of America Inc /De/)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Subsection 3.3, the Borrower each Loan Party may from time to time create or acquire new Wholly Owned wholly-owned Subsidiaries in connection with Permitted Acquisitions or otherwiseonly, and the Wholly Owned such wholly-owned Subsidiaries of the Borrower such Loan Party may create or acquire new Wholly Owned Subsidiarieswholly-owned Subsidiaries only, provided that:
(aA) Concurrently with Within twenty (20) Business Days after the creation or direct or indirect acquisition by the Borrower Loan Party thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyJoinder Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party hereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, Loan Documents and (ii) a joinder to the Subsidiary Pledge and Security Agreement, substantially in the form attached thereto, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLoan Documents;
(bB) Concurrently with Within twenty (20) Business Days after the creation or acquisition of any new Wholly Owned Subsidiary, all the capital stock of or other equity interest in such new Subsidiary will be pledged to the Capital Stock Administrative Agent as follows: (i) if any Loan Party directly owns any of which is directly owned by the Borrowercapital stock of or other equity interest in such new Subsidiary, the Borrower such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge Agreement pursuant to which all such capital stock or other equity interest shall be pledged to the Administrative Agent, together with the certificates evidencing such capital stock and Security undated stock powers duly executed in blank; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary of a Loan Party, to the extent not already covered by the Pledge Agreement, such other Subsidiary will execute and deliver to the Administrative Agent an appropriate joinder, amendment or supplement to the Pledge Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; Second Amended and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary")Restated Credit Agreement/D&E Communications, the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;Inc.
(cC) As promptly as reasonably possible, the Borrower each Loan Party and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a perfected security interest on a first priority perfected security interest basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 5.8, the Borrower Company may from time to time create or acquire new Wholly Owned physician practices that will be Subsidiaries hereunder and other new Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries Subsidiary Guarantors of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, ; provided that:
(a) Concurrently with (and in any event within ten Business Days after) the creation or direct or indirect acquisition by the Borrower Company thereof, each such new Wholly Owned Subsidiary (unless other than if such new Subsidiary is a Designated Non-Guarantor Subsidiary) constitutes an Immaterial Subsidiary will execute and deliver to the Agent (i) Holder a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower Company under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensNote;
(b) Concurrently with (and in any event within 10 Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary Subsidiary, Company will deliver to Holder:
(i) (A) a copy of the Capital Stock certificate of which incorporation (or other charter documents) of such Subsidiary, certified as of a date that is directly owned satisfactory to Holder by the Borrowerapplicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the Borrower will execute bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary as of a date that is satisfactory to Holder by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and, (D) other than if such new Subsidiary constitutes an Immaterial Subsidiary, copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and deliver performance of the agreements, documents and instruments executed pursuant to Section 5.9(a), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to Holder;
(ii) other than if such new Subsidiary constitutes an Immaterial Subsidiary, a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such Subsidiary in each jurisdiction in which such Subsidiary is incorporated or organized, has a place of business or maintains any assets, which report shall show no Liens on its assets (other than Permitted Liens);
(iii) other than if such new Subsidiary constitutes an Immaterial Subsidiary, a certificate of the secretary or an assistant secretary of such Subsidiary as to the Agent incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Section 5.9(a);
(iv) other than if such new Subsidiary constitutes an amendment or supplement Immaterial Subsidiary, a certificate as to the Borrower Pledge and Security Agreementsolvency of such Subsidiary, pursuant addressed to which all Holder, dated as of the Capital Stock date of creation or acquisition of such new Wholly Owned Subsidiary and any promissory notes from in form and substance reasonably satisfactory to Holder;
(v) other than if such new Wholly Owned Subsidiary constitutes an Immaterial Subsidiary, evidence satisfactory to Holder that no Default or Event of Default shall exist immediately before or after the Borrower creation or acquisition of such Subsidiary or be caused thereby; and
(vi) a certificate executed by an Authorized Officer of Company and, if such Subsidiary does not constitute an Immaterial Subsidiary, such Subsidiary, which shall constitute a representation and warranty by Company and such Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Note to such creation or acquisition have been satisfied, in form and substance reasonably satisfactory to Holder; and
(c) If the Acquisition involves a physician practice that will be pledged to the Agenttreated as a Subsidiary of Company, together with the certificates evidencing other than if such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and new Subsidiary constitutes an Immaterial Subsidiary, concurrently with the creation or direct or indirect acquisition by Company thereof, each such physician practice and the owner of any new Wholly Owned Subsidiary all the Capital Stock issued by such physician practice (or, if there is more than one owner, owners of which is directly owned by another Wholly Owned Subsidiary at least seventy-five percent (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable75%) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of issued by such new Wholly Owned physician practice) within ten (10) Business Days after the Acquisition shall enter into a Physician Shareholder Agreement and a Physician Practice Management Agreement, in each case on terms and conditions satisfactory to Holder.
(d) If for any reason and at any time a Subsidiary previously qualifying as an Immaterial Subsidiary no longer qualifies as an Immaterial Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to involves a physician practice, such Subsidiary and the Parent owner of all the Capital Stock issued by such Subsidiary (or, if there is more than one owner, owners of at least seventy five percent (75%) of the Capital Stock issued by such Subsidiary) within ten (10) Business Days after the first date such Subsidiary no longer qualifies as an Immaterial Subsidiary shall be pledged enter into a Physician Shareholder Agreement and a Physician Practice Management Agreement, in each case on terms and conditions satisfactory to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;Holder.
(ce) As Other than with respect to a new Subsidiary that constitutes an Immaterial Subsidiary, as promptly as reasonably possible, Company and the Borrower and its Subsidiaries Subsidiary Guarantors will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the AgentHolder, as the Agent Holder may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of Americatherewith.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower Company may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days after) the creation or direct or indirect acquisition by the Borrower Company thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyGuaranty Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower Borrowers under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary GuarantyGuaranty Agreement, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the BorrowerCompany, the Borrower Company will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower Company shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower Company and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction counsel, certified copies of organization of each such new Wholly Owned Subsidiaryits organizational documents, resolutions, lien searches and other customary items), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Notwithstanding the foregoing, with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary shall hold assets located solely inbe required to be pledged only if such Foreign Subsidiary is both a First-Tier Foreign Subsidiary and a Material Foreign Subsidiary, and in any event such pledge shall not exceed sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary would not cause any adverse tax consequences to the Company (other than that which would be de minimis), and (ii) such Foreign Subsidiary shall not be required to become a Subsidiary Guarantor or become a party to the Security Agreement (and the documents, certificates, opinions and other items required under Section 6.10(c) shall not be required with respect to such Foreign Subsidiary) if (y) such Foreign Subsidiary is not a Material Foreign Subsidiary or (z) doing so would cause adverse tax consequences to the Company (other than that which would be de minimis); provided that in the event any Foreign Subsidiary that is not initially a Material Foreign Subsidiary subsequently becomes a Material Foreign Subsidiary, such Foreign Subsidiary shall be organized under subject to the laws requirements of this Section 6.10 (subject to the limitations set forth in this Section 6.10(d)); and provided further that if at any jurisdiction oftime all First-Tier Foreign Subsidiaries whose Capital Stock is not pledged to the Administrative Agent represent at such time (together with their respective direct and indirect Subsidiaries, on a consolidated basis) 15% or more of the United States consolidated revenues or the total assets of Americathe Parent and its Subsidiaries taken as a whole, then the Company shall pledge or cause to be pledged to the Administrative Agent the Capital Stock of one or more such First-Tier Foreign Subsidiaries (irrespective of whether any such First-Tier Foreign Subsidiary is a Material Foreign Subsidiary, but subject to the 65% limitation set forth in this Section 6.10(d), unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary would not cause any adverse tax consequences to the Company (other than that which would be de minimis)) to the extent necessary to reduce such percentage below 15%.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 5.8, the Borrower may from time to time create or acquire new Wholly Owned physician practices that will be Subsidiaries hereunder and other new Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries Subsidiary Guarantors of the Borrower may create or acquire new Wholly Owned Subsidiaries, ; provided that:
(a) Concurrently with (and in any event within ten Business Days after) the creation or direct or indirect acquisition by the Borrower thereof, (i) each such new Wholly Owned Subsidiary, other than if such new Subsidiary (unless such Subsidiary is a Designated Non-Guarantor constitutes an Immaterial Subsidiary) , will execute and deliver to the Agent Lender (iA) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, Documents and (iiB) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent Lender a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
, and (bii) Concurrently with other than if such Subsidiary is a physician practice, the creation Borrower will, or acquisition of any new Wholly Owned will cause the parent Subsidiary that owns the Capital Stock of which is directly owned by the Borrowersuch new Subsidiary to, the Borrower will execute and deliver to the Agent Lender an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to so owned by the Borrower or such other Subsidiary shall be pledged to the AgentLender, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and and, in each case, any such promissory notes duly endorsed other documents and certificates , in blank; form and concurrently substance reasonably satisfactory to the Lender, as the Lender may reasonably request in connection therewith;
(b) Concurrently with (and in any event within 10 Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary, the Borrower will deliver to the Lender:
(i) (A) a copy of the certificate of incorporation (or other charter documents) of such Subsidiary, certified as of a date that is satisfactory to the Lender by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary as of a date that is satisfactory to the Lender by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and, (D) other than if such new Subsidiary constitutes an Immaterial Subsidiary, copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Section 5.9(a), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Lender;
(ii) other than if such new Subsidiary constitutes an Immaterial Subsidiary, a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such Subsidiary in each jurisdiction in which such Subsidiary is incorporated or organized, has a place of business or maintains any assets, which report shall show no Liens on its assets (other than Permitted Liens);
(iii) other than if such new Subsidiary constitutes an Immaterial Subsidiary, a certificate of the secretary or an assistant secretary of such Subsidiary as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Section 5.9(a);
(iv) other than if such new Subsidiary constitutes an Immaterial Subsidiary, a certificate as to the solvency of such Subsidiary, addressed to the Lender, dated as of the date of creation or acquisition of such Subsidiary and in form and substance reasonably satisfactory to the Lender;
(v) other than if such new Subsidiary constitutes an Immaterial Subsidiary, evidence satisfactory to the Lender that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such Subsidiary or be caused thereby; and
(vi) a certificate executed by an Authorized Officer of the Borrower and, if such Subsidiary does not constitute an Immaterial Subsidiary, such Subsidiary, which shall constitute a representation and warranty by the Borrower and such Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably satisfactory to the Lender; and
(c) If the Acquisition involves a physician practice that will be a Subsidiary of the Borrower, other than if such Subsidiary constitutes an Immaterial Subsidiary, concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such physician practice and the owner of all the Capital Stock issued by such physician practice (or, if there is more than one owner, owners of which is directly owned by another Wholly Owned Subsidiary at least seventy five percent (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable75%) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of issued by such new Wholly Owned physician practice) within ten (10) Business Days after the Acquisition shall enter into a Physician Shareholder Agreement, a Physician Practice Management Agreement and collateral assignments thereof to the Lender, in each case on terms and conditions satisfactory to the Lender.
(d) If for any reason and at any time a Subsidiary previously qualifying as an Immaterial Subsidiary no longer qualifies as an Immaterial Subsidiary and any promissory notes from such new Wholly Owned Subsidiary involves a physician practice, such Subsidiary and the owner of all the Capital Stock issued by such Subsidiary (or, if there is more than one owner, owners of at least seventy five percent (75%) of the Capital Stock issued by such Subsidiary) within ten (10) Business Days after the first date such Subsidiary no longer qualifies as an Immaterial Subsidiary shall enter into a Physician Shareholder Agreement, a Physician Practice Management Agreement and collateral assignments thereof to the Parent Subsidiary shall be pledged Lender, in each case on terms and conditions satisfactory to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;Lender.
(ce) As Other than with respect to a new Subsidiary that constitutes an Immaterial Subsidiary, as promptly as reasonably possible, the Borrower and its Subsidiaries the Subsidiary Guarantors will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the AgentLender, as the Agent Lender may reasonably request in connection therewith and will take such other action as the Agent Lender may reasonably request to create in favor of the Agent Lender a first priority perfected security interest in the Collateral collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.611.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries (including Excluded Subsidiaries) in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such that is not designated as an Excluded Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall, grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLiens and (iii) a Mortgage with respect to any real property owned by such Subsidiary (or a landlord lien waiver with respect to any real property leased by such Subsidiary), together with all Mortgaged Property Support Documents; provided, however, that in the event any real property owned by such Subsidiary has an appraised or book value of $750,000 or less, Mortgage shall only be required upon the request of the Administrative Agent or the Required Lenders;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary (including any Excluded Subsidiary) all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries (including all Excluded Subsidiaries) will deliver any such other documents, certificates and opinions (including opinions, and opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary (including an Excluded Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 6.9, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within 20 Business Days thereof or such later date approved by the Administrative Agent) the creation or direct or indirect acquisition by the Borrower thereof, (i) each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (iA) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (iiB) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
, and (bC) Concurrently unless the Administrative Agent agrees otherwise in writing, a Mortgage with respect to any owned interest of such new Subsidiary in real property with a value in excess of $1,000,000 and the creation Borrower will, or acquisition of any new Wholly Owned will cause the parent Subsidiary that owns the Capital Stock of which is directly owned by the Borrowersuch new Subsidiary to, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank blank;
(b) Concurrently with (and in any event within 20 Business Days thereof or such promissory notes duly endorsed in blank; and concurrently with later date approved by the Administrative Agent) the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary Borrower will execute and deliver to the Agent Administrative Agent:
(i) if such Subsidiary, after giving effect to any Permitted Acquisition contemplated in connection with such Subsidiary, is reasonably expected to have Consolidated EBITDA in excess of $5,000,000 for the following 12 months, upon the reasonable request of the Administrative Agent, a joinder, amendment or supplement (as applicable) written legal opinion of counsel to such Subsidiary addressed to the Administrative Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such Subsidiary, certified as of a date that is reasonably acceptable to the Administrative Agent by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary Pledge as of a date that is reasonably acceptable to the Administrative Agent by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and Security Agreement(D) copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Section 6.10(a), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Administrative Agent;
(iii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against any such Subsidiary that is acquired in each jurisdiction in which all such Subsidiary is incorporated or organized and has a principal place of business, which report shall show no Liens on its assets (other than Permitted Liens);
(iv) a certificate of the Capital Stock secretary or an assistant secretary of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary as to the Parent Subsidiary shall be pledged incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Section 6.10(a);
(v) [Reserved]
(vi) evidence satisfactory to the Administrative Agent that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such Subsidiary or be caused thereby; and
(vii) a certificate executed by an Authorized Officer of each of the Borrower and such Subsidiary, which shall constitute a representation and warranty by the Borrower and such Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably satisfactory to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Agent Administrative Agent, for the benefit of the Lenders, a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed Notwithstanding the foregoing provisions of this Section 6.10, with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to the extent) that (y) such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary or acquired Wholly Owned (z) such pledge exceeds 65% of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than 65% of the voting Capital Stock of such Foreign Subsidiary shall hold assets located solely inwould not cause any adverse tax consequences to the Borrower, and shall (ii) such Foreign Subsidiary will not be organized required to become a Subsidiary Guarantor if doing so would cause any adverse tax consequences to the Borrower, determined by whether the execution of the Guaranty by such Foreign Subsidiary would constitute an investment of earnings in United States property under Section 956 (or any successor statute) of the laws Code which would trigger an increase in the gross income of the Borrower pursuant to Section 951 (or any jurisdiction ofsuccessor provision) of the Code without corresponding credits or other offsets.
(e) Notwithstanding the foregoing, for any Subsidiary created for the sole purpose of making a Permitted Acquisition and so long as such Subsidiary has no assets, the United States Borrower shall not be required to comply with this Section 6.10 until the consummation of Americasuch Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement and Pledge and Security Agreement (Swisher Hygiene Inc.)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower Company may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days after) the creation or direct or indirect acquisition by the Borrower Company thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyGuaranty Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower Borrowers under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary GuarantyGuaranty Agreement, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the BorrowerCompany, the Borrower Company will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower Company shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower Company and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction counsel, certified copies of organization of each such new Wholly Owned Subsidiaryits organizational documents, resolutions, lien searches and other customary items), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Notwithstanding the foregoing, with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary shall hold assets located solely inbe required to be pledged only if such Foreign Subsidiary is both a First-Tier Foreign Subsidiary and a Material Foreign Subsidiary, and in any event such pledge shall not exceed sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary would not cause any adverse tax consequences to the Company (other than that which would be de minimis), and (ii) such Foreign Subsidiary shall not be required to become a Subsidiary Guarantor or become a party to the Security Agreement (and the documents, certificates, opinions and other items required under Section 6.10(c) shall not be required with respect to such Foreign Subsidiary) if (y) such Foreign Subsidiary is not a Material Foreign Subsidiary or (z) doing so would cause adverse tax consequences to the Company (other than that which would be de minimis); provided that in the event any Foreign Subsidiary that is not initially a Material Foreign Subsidiary subsequently becomes a Material Foreign Subsidiary, such Foreign Subsidiary shall be organized under subject to the laws requirements of this Section 6.10 (subject to the limitations set forth in this Section 6.10(d)); and provided further that if at any jurisdiction oftime all First-Tier Foreign Subsidiaries whose Capital Stock is not pledged to the Administrative Agent represent at such time (together with their respective direct and indirect Subsidiaries, on a consolidated basis) 15% or more of the United States of Americathe consolidated revenues or the total assets of the Parent and its Subsidiaries taken as a whole, then the Company shall pledge or cause to be pledged to the Administrative Agent the Capital Stock of one or more such First-Tier Foreign Subsidiaries (irrespective of whether any such First-Tier Foreign Subsidiary is a Material Foreign Subsidiary, but subject to the 65% limitation set forth in this Section 6.10(d), unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary would not cause any adverse tax consequences to the Company (other than that which would be de minimis)) to the extent necessary to reduce such percentage below 15%.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within fifteen (15) calendar days after) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent Administrative Agent, for the benefit of the Lenders, a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within fifteen (15) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within fifteen (15) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) Concurrently with (and in any event within fifteen (15) calendar days thereafter) the creation or acquisition of any new Subsidiary, the Borrower will deliver to the Administrative Agent:
(i) a written legal opinion of counsel to such new Subsidiary (the “New Guarantor”) addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative Agent and its counsel, which shall cover such matters relating to such New Guarantor and the creation or acquisition thereof incident to the transactions contemplated by this Agreement and this Section 6.9 and the other Credit Documents as set forth in the legal opinion of counsel delivered to the Administrative Agent and the Lenders on the Closing Date;
(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such New Guarantor certified as of a date that is acceptable to the Administrative Agent by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor, (B) a copy of the bylaws or similar organizational document of such New Guarantor certified on behalf of such New Guarantor as of a date that is acceptable to the Administrative Agent by the corporate secretary or assistant secretary of such New Guarantor, (C) an original certificate of good standing for such New Guarantor issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor and (D) copies of the resolutions of the Board of Directors and, if required, stockholders or other equity owners of such New Guarantor authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Sections 6.9(a) and 6.9(b), certified on behalf of such New Guarantor by an Authorized Officer of such New Guarantor, all in form and substance reasonably acceptable to the Administrative Agent;
(iii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such New Guarantor in each jurisdiction in which such New Guarantor is incorporated or organized, has a place of business or keeps any material property, which report shall show no Liens on such property (other than Permitted Liens);
(iv) a certificate on behalf of such New Guarantor of the corporate secretary or assistant secretary of such New Guarantor as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Sections 6.9(a) and 6.9(b);
(v) a Solvency Certificate for such New Guarantor, addressed to the Administrative Agent and the Lenders dated as of the date of creation or acquisition of such New Guarantor;
(vi) evidence reasonably satisfactory to the Administrative Agent that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such New Guarantor or be caused thereby; and
(vii) a certificate executed on behalf of the Company and such New Guarantor by an Authorized Officer of each of the Company and such New Guarantor, which shall constitute a representation and warranty by the Company and such New Guarantor as of the date of the creation or acquisition of such New Guarantor that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably acceptable to the Administrative Agent.
(d) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Agent Administrative Agent, for the benefit of the Lenders, a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above; provided that, subject with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to Permitted Liens; and
the extent) that (dy) Each newly formed such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary or acquired Wholly Owned (z) such pledge exceeds sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary shall hold assets located solely inwould not cause any adverse tax consequences to the Borrower, and shall (ii) such Foreign Subsidiary will not be organized under required to become a Subsidiary Guarantor if doing so would cause adverse tax consequences to the laws of any jurisdiction of, the United States of AmericaBorrower.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.67.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries Subsidiary Guarantors of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided thatthat with respect to each such Subsidiary that has assets at any time in excess of $100,000, has executed or is likely to execute a Services Agreement, or is or will be engaged in active business operations:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Orthalliance Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower Company may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by the Borrower Company or any Subsidiary thereof, each such new Wholly Owned Domestic Subsidiary (unless such Subsidiary is which qualifies as a Designated Non-Guarantor Subsidiary) hereunder will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower Borrowers under this Agreement and the other Credit Documents, and (ii) provided further that if any acquired entity is merged into any Borrower or any Subsidiary Guarantor in connection with such Acquisition, the acquired and merged entity shall not be required to become a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;Guarantor.
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrowerany Borrower or any Guarantor, the such Borrower or such Guarantor will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the AgentAgent in accordance with and as described in Section 2.24(b), together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the AgentAgent in accordance with and as described in Section 2.24(b), together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower Company and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Lason Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within fifteen (15) calendar days after) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent Administrative Agent, for the benefit of the Lenders, a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens, and (iii) an Intercompany Note, made payable by such new Subsidiary to the Borrower or its direct parent Subsidiary, as the case may be, assigned in blank to the Administrative Agent for the benefit of the Lenders;
(b) Concurrently with (and in any event within fifteen (15) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within fifteen (15) calendar days after) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Administrative Agent, for the benefit of the Lenders, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) Concurrently with (and in any event within fifteen (15) calendar days thereafter) the creation or acquisition of any new Subsidiary, the Borrower will deliver to the Administrative Agent:
(i) a written legal opinion of counsel to such new Subsidiary (the “New Guarantor”) addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative Agent and its counsel, which shall cover such matters relating to such New Guarantor and the creation or acquisition thereof incident to the transactions contemplated by this Agreement and this Section 6.10 and the other Credit Documents as set forth in the legal opinion of counsel delivered to the Administrative Agent and the Lenders on the Closing Date;
(ii) (A) a copy of the certificate of incorporation (or other charter documents) of such New Guarantor certified as of a date that is acceptable to the Administrative Agent by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor, (B) a copy of the bylaws or similar organizational document of such New Guarantor certified on behalf of such New Guarantor as of a date that is acceptable to the Administrative Agent by the corporate secretary or assistant secretary of such New Guarantor, (C) an original certificate of good standing for such New Guarantor issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such New Guarantor and (D) copies of the resolutions of the Board of Directors and, if required, stockholders or other equity owners of such New Guarantor authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Sections 6.10(a) and 6.10(b), certified on behalf of such New Guarantor by an Authorized Officer of such New Guarantor, all in form and substance reasonably acceptable to the Administrative Agent;
(iii) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed against such New Guarantor in each jurisdiction in which such New Guarantor is incorporated or organized, has a place of business or keeps any material property, which report shall show no Liens on such property (other than Permitted Liens);
(iv) a certificate on behalf of such New Guarantor of the corporate secretary or assistant secretary of such New Guarantor as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Sections 6.10(a) and 6.10(b);
(v) a Solvency Certificate for such New Guarantor, addressed to the Administrative Agent and the Lenders dated as of the date of creation or acquisition of such New Guarantor;
(vi) evidence reasonably satisfactory to the Administrative Agent that no Default or Event of Default shall exist immediately before or after the creation or acquisition of such New Guarantor or be caused thereby; and
(vii) a certificate executed on behalf of the Company and such New Guarantor by an Authorized Officer of each of the Company and such New Guarantor, which shall constitute a representation and warranty by the Company and such New Guarantor as of the date of the creation or acquisition of such New Guarantor that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably acceptable to the Administrative Agent.
(d) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent or the Required Lenders may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Agent Administrative Agent, for the benefit of the Lenders, a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above; provided that, subject with respect to any Foreign Subsidiary, (i) the Capital Stock of such Foreign Subsidiary will not be required to be pledged to the extent (but only to Permitted Liens; and
the extent) that (dy) Each newly formed such Foreign Subsidiary is a Subsidiary of a Foreign Subsidiary or acquired Wholly Owned (z) such pledge exceeds sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary, unless and to the extent that the pledge of greater than sixty-five percent (65%) of the voting Capital Stock of such Foreign Subsidiary shall hold assets located solely inwould not cause any adverse tax consequences to the Borrower, and (ii) such Foreign Subsidiary will not be required to become a Subsidiary Guarantor if doing so would cause adverse tax consequences to the Borrower; and provided further that the prior written approval of the Required Lenders (or the Administrative Agent on their behalf and with their written consent) shall be organized under required for the laws creation or acquisition of any jurisdiction ofnew Foreign Subsidiary having total assets in excess of $500,000, the United States of Americawhich approval shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, ; provided that:
, if required by Section 6.10, concurrently with (aand in any event within ten (10) Concurrently with Business Days thereafter) the creation or direct or indirect acquisition by the Borrower or a Subsidiary thereof, :
(a) each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder an accession to the Subsidiary Guaranty, Guaranty pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;; and
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all the Capital Stock of which is such new Subsidiary will be pledged to the Administrative Agent as follows: (i) if the Borrower directly owned by owns any of the BorrowerCapital Stock of such new Subsidiary, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the such Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition (ii) if any of any new Wholly Owned Subsidiary the Capital Stock of which such new Subsidiary is directly owned by another Wholly Owned Subsidiary of the Borrower (the "“Parent Subsidiary"”), to the extent not already covered by the Pledge Agreement, the Parent Subsidiary will execute and deliver to the Administrative Agent a joinder, an appropriate accession or amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of s uch new Subsidiary owned by such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.68.5, the Borrower OCA may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseotherwise as permitted under SECTION 8.5, and the Wholly Owned Subsidiaries of the Borrower OCA may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such OCA of any new Wholly Owned Domestic Subsidiary (unless other than an Inactive Subsidiary), (i) OCA will cause such Domestic Subsidiary is a Designated Non-Guarantor Subsidiary) will to execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Domestic Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower OCA under this Agreement and the other Credit Documents, and (ii) a joinder to the OCA and/or any applicable Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent a Pledge Agreement or an amendment or supplement to the Borrower OCA Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Domestic Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank blank;
(b) Concurrently with (and in any such promissory notes duly endorsed in blank; and concurrently with event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by OCA of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Foreign Subsidiary (the "Parent other than an Inactive Subsidiary"), the Parent OCA and/or any applicable Subsidiary will execute and deliver to the Agent a joinder, Pledge Agreement or an amendment or supplement (as applicable) to the Subsidiary OCA Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Foreign Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank (or such other documents, instruments and other evidence as the Agent shall require in order to perfect its security interest (or the equivalent thereof under applicable law of the relevant foreign jurisdiction) in such Capital Stock); provided that no more than 65% of the Capital Stock of any Foreign Subsidiary shall be required to be pledged to the Agent if the pledge of more than 65% thereof would, in the good faith judgment of OCA, result in adverse tax consequences to OCA or would be unlawful for such promissory notes duly endorsed in blank;Foreign Subsidiary; and
(c) As promptly as reasonably possible, the Borrower OCA and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary, including any new Foreign Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above. Nothing contained in this Section, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely inhowever, and shall be organized under deemed to permit the laws creation or acquisition by OCA, directly or indirectly, of any jurisdiction of, the United States of AmericaSubsidiary not expressly permitted under SECTION 8.5.
Appears in 1 contract
Samples: Credit Agreement (Orthodontic Centers of America Inc /De/)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within 30 days thereafter) the creation or direct or indirect acquisition by a Grantor of any new wholly owned Subsidiary (if such new Subsidiary is not a Foreign Subsidiary, is not a Foreign Subsidiary Holding Company and is not prohibited from complying with this Section by the Borrower thereofapplicable Law of any applicable PUC), each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent CoBank (iunless such requirement is waived in writing by CoBank in its sole discretion) a joinder agreement, in form and substance acceptable to the Subsidiary GuarantyCoBank in its sole discretion, pursuant to which such new Wholly Owned Subsidiary (A) shall become a guarantor thereunder party to the Continuing Guaranty as a “Guarantor,” (B) shall become a party to the Loan Agreement as a “Loan Party” and (C) shall become a party hereto as a “Grantor” and shall agree deliver to guarantee CoBank all such other instruments, documents and agreements providing collateral security with respect to the payment in full of the Secured Obligations of the Borrower under this Agreement and the other Credit Documentsas CoBank shall reasonably request, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent CoBank a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations (subject to Liens permitted under the Subsidiary GuarantyLoan Agreement), subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to extent provided herein and in such instruments, documents and agreements, for the Borrower Secured Obligations. Amended and Restated Pledge and Security Agreement/New Ulm Telecom, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) Inc. Loan No. RX0583 As promptly as reasonably possible, the Borrower Grantors and its their respective Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned SubsidiarySubsidiary and updated annexes to this Agreement), in form and substance reasonably satisfactory to the AgentCoBank, as the Agent CoBank may reasonably request in connection therewith and will take such other action as the Agent CoBank may reasonably request to create in favor of the Agent CoBank a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Pledge and Security Agreement (New Ulm Telecom Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Subsection 3.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseSubsidiaries, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
that concurrently with (aand in any event within ten Business Days thereafter) Concurrently with the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary, all the capital stock of or other equity interest in such new Subsidiary the Capital Stock of which is directly owned by the BorrowerBorrower or any Subsidiary of the Borrower will be pledged to the Administrative Agent as follows (provided that any equity interests in any new foreign Subsidiary formed or acquired after the Closing Date that constitutes a “controlled foreign corporation” under Section 956 of the IRC which, when aggregated with all of the other shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the total equity interests of such Subsidiary being pledged to Administrative Agent, need not be pledged): (i) if Borrower directly owns any of the capital stock of or other equity interest in such new Subsidiary, Borrower will execute and deliver to the Administrative Agent any amendment or supplement to its Security Agreement as Administrative Agent may reasonably request pursuant to which all such capital stock or other equity interest shall be pledged to the Administrative Agent, together, if applicable, with the certificates evidencing such capital stock and undated stock powers duly executed in blank; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by a wholly-owned direct or indirect Subsidiary of Borrower, such other Subsidiary will execute and deliver to the Administrative Agent (except in connection with a Permitted Acquisition where the stock is pledged to another Person in connection with such acquisition or any debt assumed thereunder) a Security Agreement or an amendment or supplement to the Borrower Pledge and its Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) . As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 11.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries (including Excluded Subsidiaries) in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within thirty (30) Business Days thereafter in the case of clauses (i) and (ii) below and ninety (90) Business Days in the case of clause (iii) below) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such that is not designated as an Excluded Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall, grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLiens and (iii) a Mortgage with respect to any real property owned by such Subsidiary (or a landlord lien waiver with respect to any real property leased by such Subsidiary), together with all Mortgaged Property Support Documents; provided, however, that in the event any real property owned by such Subsidiary has an appraised or book value of $1,000,000 or less, a Mortgage shall only be required upon the request of the Administrative Agent or the Required Lenders;
(b) Concurrently with (and in any event within thirty (30) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary (including any Excluded Subsidiary) all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within thirty (30) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "“Parent Subsidiary"”), the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries (including all Excluded Subsidiaries) will deliver any such other documents, certificates and opinions (including opinions, and opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary (including an Excluded Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and.
(dc) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, Section 9.11 of the Credit Agreement is hereby amended and shall be organized under the laws of any jurisdiction of, the United States of America.restated in its entirety to read as follows:
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.67.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries Subsidiary Guarantors of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided thatthat with respect to each such Subsidiary that has assets at any time in excess of $100,000, has executed or is likely to execute a Service Agreement, or is or will be engaged in active business operations:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Orthalliance Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Subsection 3.3, the Borrower each Loan Party may from time to time create or acquire new Wholly Owned wholly-owned Subsidiaries in connection with Permitted Acquisitions or otherwiseonly, and the Wholly Owned such wholly-owned Subsidiaries of the Borrower such Loan Party may create or acquire new Wholly Owned Subsidiarieswholly-owned Subsidiaries only, provided that:
(aA) Concurrently with Within twenty (20) Business Days after the creation or direct or indirect acquisition by the Borrower Loan Party thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyJoinder Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party hereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, Loan Documents and (ii) a joinder to the Subsidiary Pledge and Security Agreement, substantially in the form attached thereto, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLoan Documents;
(bB) Concurrently with Within twenty (20) Business Days after the creation or acquisition of any new Wholly Owned Subsidiary, all the capital stock of or other equity interest in such new Subsidiary will be pledged to the Capital Stock Administrative Agent as follows: (i) if any Loan Party directly owns any of which is directly owned by the Borrowercapital stock of or other equity interest in such new Subsidiary, the Borrower such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge Agreement pursuant to which all such capital stock or other equity interest shall be pledged to the Administrative Agent, together with the certificates evidencing such capital stock and Security undated stock powers duly executed in blank; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary of a Loan Party, to the extent not already covered by the Pledge Agreement, such other Subsidiary will execute and deliver to the Administrative Agent an appropriate joinder, amendment or supplement to the Pledge Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock and undated stock Amended and Restated Credit Agreement/D & E Communications, Inc. powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(cC) As promptly as reasonably possible, the Borrower each Loan Party and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a perfected security interest on a first priority perfected security interest basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6--------------------------------------- Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:: --------
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a) having assets with a Designated Non-Guarantor Subsidiarygross value (determined in accordance with GAAP) in excess of $110,000 or (b) having commenced the conduct of active business, will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens; provided that if any -------- new Subsidiary initially does not meet the criteria of clauses (a) or (b) of this subsection, such Subsidiary shall comply with the provisions hereof within ten (10) Business Days after it first meets either of such criteria;
(b) Concurrently with a Subsidiary delivering a joinder to the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned Guaranty as required by the BorrowerSection 6.9(a), the Borrower or parent Subsidiary, as applicable, will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Agent, together with the certificates evidencing or such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Us Oncology Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
, concurrently with (aand in any event within ten (10) Concurrently with Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a Subsidiary Guaranty, substantially in the form attached hereto as Exhibit E, or a joinder to the Subsidiary Guarantythereto, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents. Notwithstanding the foregoing, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which any such new Wholly Owned Subsidiary shall grant be exempt from providing a Subsidiary Guaranty for so long as such new Subsidiary is an Insignificant Subsidiary. If a Subsidiary is deemed initially to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrowerbe an Insignificant Subsidiary, the Borrower will execute continue to monitor whether such Subsidiary is an Insignificant Subsidiary, which monitoring shall include without limitation, calculating whether such Subsidiary satisfies clauses (ii) and deliver to (iii) of the Agent an amendment or supplement to definition of “Insignificant Subsidiary” within ten (10) Business Days after the Borrower Pledge is required to deliver the financial information under Section 6.1(a) and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"b), the Parent as applicable. Within ten (10) Business Days after such Subsidiary fails to be an Insignificant Subsidiary, such Subsidiary will execute and deliver to the Agent a joinderSubsidiary Guaranty, amendment substantially in the form attached hereto as Exhibit E, or supplement (as applicable) to the Subsidiary Pledge and Security Agreementa joinder thereto, pursuant to which all such Subsidiary shall guarantee the payment in full of the Capital Stock Obligations of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower under this Agreement and its Subsidiaries will deliver any such the other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.Credit Documents
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Subsection 3.3, the Borrower each Loan Party may from time to time create or acquire new Wholly Owned wholly-owned Subsidiaries in connection with Permitted Acquisitions or otherwiseonly, and the Wholly Owned such wholly-owned Subsidiaries of the Borrower such Loan Party may create or acquire new Wholly Owned Subsidiarieswholly-owned Subsidiaries only, provided that:
(aA) Concurrently with Within twenty (20) Business Days after the creation or direct or indirect acquisition by the Borrower Loan Party thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary GuarantyJoinder Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party hereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, Loan Documents and (ii) a joinder to the Subsidiary Pledge and Security Agreement, substantially in the form attached thereto, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted LiensLoan Documents;
(bB) Concurrently with Within twenty (20) Business Days after the creation or acquisition of any new Wholly Owned Subsidiary, all the capital stock of or other equity interest in such new Subsidiary will be pledged to the Capital Stock Administrative Agent as follows: (i) if any Loan Party directly owns any of which is directly owned by the Borrowercapital stock of or other equity interest in such new Subsidiary, the Borrower such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge Agreement pursuant to which all such capital stock or other equity interest shall be pledged to the Administrative Agent, together with the certificates evidencing such capital stock and Security undated stock powers duly executed in blank; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary of a Loan Party, to the extent not already covered by the Pledge Agreement, such other Subsidiary will execute and deliver to the Administrative Agent an appropriate joinder, amendment or supplement to the Pledge Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; Third Amended and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary")Restated Credit Agreement/D&E Communications, the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;Inc.
(cC) As promptly as reasonably possible, the Borrower each Loan Party and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a perfected security interest on a first priority perfected security interest basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject Promptly upon (and in any event within 10 days after (or such later date as Administrative Agent shall agree to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(awriting in its sole discretion) Concurrently with the creation or direct Acquisition of any new Subsidiary (other than an Excluded Subsidiary) by any Loan Party or indirect acquisition by the Borrower thereofany Subsidiary of any Loan Party, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which such new Wholly Owned Subsidiary (i) shall become a party hereto as a Guarantor and (ii) shall become a party to the Pledge and Security Agreement and shall deliver to Administrative Agent all such other Security Documents and such legal opinions as Administrative Agent shall reasonably request relating to such new Subsidiary, and shall grant to the Administrative Agent a first priority Lien upon and security interest Security Interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipmentfor the Secured Obligation (provided that no assets of an Excluded Subsidiary, general intangibles a Foreign Subsidiary or a Foreign Subsidiary Holding Company shall be required to secure the Obligations by pledge or otherwise). Promptly upon (and other personal property in any event within 10 days after (or such later date as Collateral for Administrative Agent shall agree to in writing in its obligations under sole discretion) the creation or Acquisition of any new Excluded Subsidiary Guarantyby any Loan Party or any Subsidiary of a Loan Party, subject only unless otherwise determined by Administrative Agent in its sole discretion, such new Excluded Subsidiary will execute and deliver to Permitted Liens;
Administrative Agent a Negative Pledge Agreement in form and substance satisfactory to Administrative Agent in its sole discretion. Promptly upon (band in any event within 10 days after (or such later date as Administrative Agent shall agree to in writing in its sole discretion)) Concurrently with the creation or acquisition of a new Subsidiary by any new Wholly Owned Loan Party or any Subsidiary the Capital Stock of which is directly any Loan Party, all capital stock or other equity interest in such Subsidiary owned by any Loan Party or any Subsidiary of any Loan Party will be pledged to Administrative Agent as follows (provided that any equity interests in any Foreign Subsidiary or Foreign Subsidiary Holding Company owned by a Loan Party or another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company) which, when aggregated with all of the Borrowerother shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the Borrower total equity interests entitled to vote of such Subsidiary being pledged to Administrative Agent, shall not be pledged; provided further that no assets of a Foreign Subsidiary or Foreign Subsidiary Holding Company, or any Subsidiary of either thereof or any capital stock or other equity interest issued by any such Subsidiary of either thereof, shall be required to secure the Obligations by pledge or otherwise): (i) if a Loan Party directly owns any of the capital stock of or other equity interest in such new Subsidiary, such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all such capital stock or other equity interest shall be pledged to Administrative Agent, together with the certificates evidencing such capital stock or other equity interest and undated stock or transfer powers duly executed in blank and such legal opinions as Administrative Agent may reasonably request; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company), to the extent not already covered by the Pledge and Security Agreement, such other Subsidiary will execute and deliver to Administrative Agent an appropriate joinder, amendment or supplement to the Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock or other equity interest and undated stock or transfer powers duly executed in blank and any such promissory notes duly endorsed in blank; legal opinions as Administrative Agent may reasonably request. Amended and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Restated Credit Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) /Shenandoah Telecommunications Company As promptly as reasonably possible, the Borrower Loan Parties and its their respective Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)) regarding such new Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Creation or Acquisition of Subsidiaries. Subject No Borrower shall create or acquire any Subsidiaries, provided that, subject to the provisions of SECTION 8.6clause (z) below, the a Borrower may from time to time create or acquire new domestic Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseotherwise as permitted under clause (z), and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, further provided that:
(ai) Concurrently with (and in any event within ten Business Days thereafter) the creation or direct or indirect acquisition by such Borrower of any new Subsidiary, (x) the Borrower thereof, each such new Wholly Owned Subsidiary (unless Borrowers will cause such Subsidiary is a Designated Non-Guarantor Subsidiary) will to execute and deliver to the Agent (i) Lender a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party hereto and shall be jointly and severally liable for the payment in full of the Lender Debt under this Agreement and the other Documents and shall grant to the Agent Lender a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as the Collateral for its obligations under the Subsidiary Guarantyof such Subsidiary, subject only to Permitted Liens;
, and (by) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the applicable Borrower will execute and deliver to the Agent Lender a Pledge Agreement or an amendment or supplement to the Borrower applicable Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock ownership interests of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the AgentLender, together with the certificates evidencing such Capital Stock ownership interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;and
(cii) As promptly as reasonably possible, the Borrower and its Subsidiaries Borrowers will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agentmembers of the Lender Group, as the Agent members of the Lender Group may reasonably request in connection therewith and will take such other action as the Agent members of the Lender Group may reasonably request to create in favor of the Agent Lender a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above. Nothing contained in this clause (w), subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely inhowever, and shall be organized under deemed to permit the laws creation or acquisition by the Parent or any other Borrower, directly or indirectly, of any jurisdiction of, the United States of AmericaSubsidiary not expressly permitted under clause (z) below.
Appears in 1 contract
Samples: Loan and Security Agreement (Matria Healthcare Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.68.5, the Borrower Matria may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseotherwise as permitted under SECTION 8.5, and the Wholly Owned Subsidiaries of the Borrower Matria may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereofMatria of any new Domestic Subsidiary, each (i) Matria will cause such new Wholly Owned Domestic Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will to execute and deliver to the Administrative Agent (iy) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Domestic Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower Matria under this Agreement and the other Credit Documents, and (iiz) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Domestic Subsidiary shall become a party thereto and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
, and (biii) Concurrently with the creation or acquisition of Matria and/or any new Wholly Owned applicable Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent a Pledge Agreement or an amendment or supplement to the Borrower Matria Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Domestic Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(cb) As promptly as reasonably possible, Concurrently with (and in any event within ten (10) Business Days thereafter) the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed creation or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws direct or indirect acquisition by Matria of any jurisdiction ofnew Foreign Subsidiary, the United States of America.(i) Matria will
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with the creation or direct or indirect acquisition by the Borrower or any Subsidiary thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is which qualifies as a Designated Non-Guarantor Subsidiary) hereunder will execute and deliver to the Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) provided further that if any acquired entity is merged into the Borrower or any Subsidiary Guarantor in connection with such Acquisition, the acquired and merged entity shall not be required to become a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;Guarantor.
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the BorrowerBorrower or any Guarantor, the Borrower or such Guarantor will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower or such Guarantor shall be pledged to the AgentAgent in accordance with and as described in Section 2.11, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned a Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the AgentAgent in accordance with and as described in Section 2.11, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Samples: Credit Agreement (Lason Inc)
Creation or Acquisition of Subsidiaries. Subject to the --------------------------------------- provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:: --------
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Agent (i) a joinder to the Subsidiary GuarantyGuaranty (if then in effect), pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall become a party thereto and shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other material personal property (as determined in good faith by the Administrative Agent) as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and from and after the Closing Date concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;; and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 8.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that neither the aggregate fair market value at any time of the assets of all Subsidiaries that are Immaterial Subsidiaries at such time, nor the aggregate gross revenues (determined for the most recently ended period of twelve consecutive fiscal months) of all Subsidiaries that are Immaterial Subsidiaries at such time, shall exceed $1,000,000, and provided further that:
(a) Concurrently with Promptly (and in any event within fifteen (15) Business Days) after the creation or direct or indirect acquisition by the Borrower thereof, each such of a new Wholly Owned Subsidiary (unless Subsidiary, if such new Subsidiary is a Designated Non-Guarantor Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary) ), such new Subsidiary will execute and deliver to the Agent (i) a supplement or joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liensthereunder;
(b) Concurrently with Promptly (and in any event within fifteen (15) Business Days) after the creation or acquisition of any a new Wholly Owned Subsidiary the Capital Stock capital stock or other ownership interests of which is are directly owned by the Borrower, if such new Subsidiary is a Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary), the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock capital stock or other ownership interests of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates certificates, if any, evidencing such Capital Stock capital stock or other ownership interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock capital stock or other ownership interests of which is are directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary") of the Borrower, if such new Subsidiary is a Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary), the Parent Subsidiary will execute and deliver to the Agent a joinderpledge agreement, amendment or supplement (as applicable) in form and substance substantially identical to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock or other ownership interests of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates certificates, if any, evidencing such Capital Stock capital stock or other ownership interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) Promptly (and in any event within fifteen (15) Business Days) after any existing Wholly Owned Subsidiary that was an Immaterial Subsidiary as of the Closing Date ceases to be an Immaterial Subsidiary, (i) such Subsidiary will execute and deliver to the Agent a supplement or joinder to the Guaranty, pursuant to which such Subsidiary shall become a guarantor thereunder, and (ii) the Borrower will execute and deliver to the Agent an amendment or supplement to the Pledge Agreement pursuant to which all of the common stock or other ownership interests of such Subsidiary and any promissory notes from such Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates, if any, evidencing such capital stock or other ownership interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and
(d) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith with the actions taken pursuant to this Section 6.10, and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of Americathis Section 6.10.
Appears in 1 contract
Samples: Credit Agreement (Movie Gallery Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of --------------------------------------- SECTION 8.68.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwiseotherwise as permitted under SECTION 8.5, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:: --------
(a) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or direct or indirect acquisition by the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Non- Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a Subsidiaries Guaranty (or an appropriate joinder to the Subsidiary an existing Subsidiaries Guaranty), pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a Subsidiaries Pledge and Security Agreement (or an appropriate joinder to the Subsidiary an existing Subsidiaries Pledge and Security Agreement), pursuant to which such new Wholly Owned Subsidiary shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Subsidiaries Guaranty, subject only to Permitted Liens;
(b) Concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Wholly Owned Subsidiary all or a portion of the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Administrative Agent an appropriate amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all of the Capital Stock of such new Subsidiary owned by the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank; and concurrently with (and in any event within ten (10) Business Days thereafter) the creation or acquisition of any new Subsidiary all or a portion of the Capital Stock of which is directly owned by another Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Administrative Agent an appropriate joinder, amendment or supplement to the Subsidiaries Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Parent Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all provided that no more than 65% of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Foreign -------- Subsidiary shall be required to be pledged pursuant to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;this subsection (b)); and
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above. In the event of a sale or other disposition of the Capital Stock of any Subsidiary Guarantor in a transaction expressly permitted by or pursuant to this Agreement or any other applicable Credit Document, subject only such Subsidiary Guarantor shall be released from its obligations under the applicable Subsidiaries Guaranty, Subsidiaries Pledge and Security Agreement and any other Security Documents to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned which it is a party, the security interest of the Administrative Agent in the Collateral of such Subsidiary Guarantor pledged thereunder shall hold assets located solely inbe released, and shall be organized under in connection therewith the laws Administrative Agent, at the request and expense of any jurisdiction ofthe Borrower, will execute and deliver to such Subsidiary Guarantor such documents and instruments evidencing such release or termination as the United States of AmericaBorrower may reasonably request.
Appears in 1 contract
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries Promptly upon (and in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
(aany event within 30 days after) Concurrently with the creation or direct acquisition of any new Subsidiary (other than (i) an Excluded Subsidiary or indirect acquisition (ii) a Stimulus Recipient Subsidiary if and for so long as the terms and conditions of any Permitted Stimulus Indebtedness or any grant received by the Borrower thereofsuch Stimulus Recipient Subsidiary from any Stimulus Source Agency prohibit, or it is reasonably anticipated that such terms and conditions will prohibit, such Stimulus Recipient Subsidiary from entering into a Joinder Agreement) by any Loan Party or any Subsidiary of any Loan Party, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Joinder Agreement, pursuant to which such new Wholly Owned Subsidiary (i) shall become a party hereto as a Guarantor and (ii) shall become a party to the Pledge and Security Agreement and shall deliver to Administrative Agent all such other Security Documents and such legal opinions as Administrative Agent shall reasonably request, and shall grant to the Administrative Agent a first priority Lien upon and security interest in its accounts receivableCollateral, inventoryto the extent provided in the Security Documents, equipment, general intangibles for the Secured Obligations (provided that no assets of a Foreign Subsidiary or a Foreign Subsidiary Holding Company shall be required to secure the Obligations by pledge or otherwise); and other personal property Promptly upon (and in any event within 30 days after (or such later date as Collateral for Administrative Agent shall agree to in writing in its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(bsole discretion)) Concurrently with the creation or acquisition of a new Subsidiary (other than a Stimulus Recipient Subsidiary if and for so long as the terms and conditions of any new Wholly Owned Permitted Stimulus Indebtedness or any grant received by such Stimulus Recipient Subsidiary from any Stimulus Source Agency prohibit, or it is reasonably anticipated that such terms and conditions will prohibit, the Capital Stock Equity Interests in such Stimulus Recipient Subsidiary from being pledged to Administrative Agent or require or it is reasonably anticipated will require that such Equity Interests be pledged to the applicable Stimulus Source Agency) by any Loan Party or any Subsidiary of which is directly any Loan Party, all capital stock or other equity interest in such Subsidiary owned by any Loan Party or any Subsidiary of any Loan Party will be pledged to Administrative Agent as follows (provided that any equity interests in any Foreign Subsidiary or Foreign Subsidiary Holding Company owned by a Loan Party or another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company) which, when aggregated with all of the Borrowerother shares of equity interests in such Subsidiary pledged to Administrative Agent, would result in more than 65% of the Borrower total equity interests entitled to vote of such Subsidiary being pledged to Administrative Agent, shall not be pledged; provided further that no assets of a Foreign Subsidiary or Foreign Subsidiary Holding Company, or any Subsidiary of either thereof or any Equity Interest issued by any such Subsidiary of either thereof, shall be required to secure the Obligations by pledge or otherwise): (i) if a Loan Party directly owns any of the capital stock of or other equity interest in such new Subsidiary, such Loan Party will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement pursuant to which all such capital stock or other equity interest shall be pledged to Administrative Agent, together with the certificates evidencing such capital stock or other equity interest and undated stock or transfer powers duly executed in blank and such legal opinions as Administrative Agent may reasonably request; and (ii) if any of the capital stock of or other equity interest in such new Subsidiary is owned by another Subsidiary (other than a Foreign Subsidiary or Foreign Subsidiary Holding Company), to the extent not already covered by the Pledge and Security Agreement, such other Subsidiary will execute and deliver to Administrative Agent an appropriate joinder, amendment or supplement to the Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock of or other equity interest in such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned other Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock capital stock or other equity interest and undated stock or transfer powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the legal opinions as Administrative Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) may reasonably request. As promptly as reasonably possible, the Borrower Loan Parties and its their respective Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent a first priority perfected security interest on a first-priority basis in the Collateral being pledged pursuant to the documents described above. Administrative Agent may elect by written notice to Borrower to exempt (i) any new Subsidiary which is not wholly-owned directly or indirectly by the Loan Parties and/or (ii) any Loan Party that owns capital stock or other equity interest in such Subsidiary from the requirements of all or any portion of this Subsection 2.12 if it determines in its sole discretion that the costs to the Loan Parties of complying with all or such portion of this Subsection 2.12 exceed the relative benefit afforded the Secured Parties. Notwithstanding the above, subject only so long as any Partnership is not wholly-owned directly or indirectly by the Loan Parties, such Partnership shall not be required to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, execute and shall be organized under the laws of any jurisdiction of, the United States of Americadeliver to Administrative Agent a Joinder Agreement.
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Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 10.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that neither the aggregate fair market value at any time of the assets of all Subsidiaries that are Immaterial Subsidiaries at such time, nor the aggregate gross revenues (determined for the most recently ended period of twelve consecutive fiscal months) of all Subsidiaries that are Immaterial Subsidiaries at such time, shall exceed $1,000,000, and provided further that:
(aA) Concurrently with Promptly (and in any event within fifteen (15) Business Days) after the creation or direct or indirect acquisition by the Borrower thereof, each such of a new Wholly Owned Subsidiary (unless Subsidiary, if such new Subsidiary is a Designated Non-Guarantor Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary) ), such new Subsidiary will execute and deliver to the Agent (i) a supplement or joinder to the Subsidiary Guaranty, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liensthereunder;
(bB) Concurrently with Promptly (and in any event within fifteen (15) Business Days) after the creation or acquisition of any a new Wholly Owned Subsidiary the Capital Stock Equity Interests of which is are directly owned by the Borrower, the if such new Subsidiary is a Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary), Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the Capital Stock Equity Interests of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates certificates, if any, evidencing such Capital Stock Equity Interests of such new Subsidiary and any promissory notes from such new Subsidiary to Borrower shall be pledged to the Agent, together with the certificates, if any, evidencing such capital stock or other ownership interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock Equity Interests of which is are directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary") of Borrower, if such new Subsidiary is a Material Subsidiary (or, if such new Subsidiary is an Immaterial Subsidiary when so created or acquired, promptly (and in any event within fifteen (15) Business Days) after such new Subsidiary ceases to be an Immaterial Subsidiary), the Parent Subsidiary will execute and deliver to the Agent a joinderpledge agreement, amendment or supplement (as applicable) in form and substance substantially identical to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock capital stock or other ownership interests of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent parent Subsidiary shall be pledged to the Agent, together with the certificates certificates, if any, evidencing such Capital Stock Equity Interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(cC) Promptly (and in any event within fifteen (15) Business Days) after any existing Wholly Owned Subsidiary that was an Immaterial Subsidiary as of the Closing Date ceases to be an Immaterial Subsidiary, (i) such Subsidiary will execute and deliver to the Agent a supplement or joinder to the Guaranty, pursuant to which such Subsidiary shall become a guarantor thereunder, and (ii) Borrower will execute and deliver to the Agent an amendment or supplement to the Pledge Agreement pursuant to which all of the Equity Interests of such Subsidiary and any promissory notes from such Subsidiary to Borrower shall be pledged to the Agent, together with the certificates, if any, evidencing such Equity Interests and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and
(D) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction Jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as with the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged actions taken pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of Americathis Section 8.10.
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Samples: Credit Agreement (Movie Gallery Inc)
Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6Section 7.5, the Borrower may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries, provided that:
, if required by Section 5.10, concurrently with (aand in any event within ten (10) Concurrently with Business Days thereafter) the creation or direct or indirect acquisition by the Borrower or a Subsidiary thereof, ,
(a) each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) will execute and deliver to the Administrative Agent (i) a joinder to the Subsidiary Guaranty, Guaranty pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder party thereto and shall agree to guarantee the payment in full of the Obligations of the Borrower under this Agreement and the other Credit Documents, and (ii) a joinder to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;; and
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary all the Capital Stock of which is such new Subsidiary will be pledged to the Administrative Agent as follows:
(i) if the Borrower directly owned by owns any of the BorrowerCapital Stock of such new Subsidiary, the Borrower will execute and deliver to the Administrative Agent an amendment or supplement to the Borrower Pledge and Security Agreement, Agreement pursuant to which all of the such Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition (ii) if any of any new Wholly Owned Subsidiary the Capital Stock of which such new Subsidiary is directly owned by another Wholly Owned Subsidiary of the Borrower (the "Parent Subsidiary"), to the extent not already covered by the Pledge Agreement, the Parent Subsidiary will execute and deliver to the Administrative Agent a an appropriate joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from owned by such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Administrative Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary), in form and substance reasonably satisfactory to the Agent, as the Agent may reasonably request in connection therewith and will take such other action as the Agent may reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant to the documents described above, subject only to Permitted Liens; and
(d) Each newly formed or acquired Wholly Owned Subsidiary shall hold assets located solely in, and shall be organized under the laws of any jurisdiction of, the United States of America.
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Creation or Acquisition of Subsidiaries. Subject to the provisions of SECTION 8.6, the Borrower The Company may from time to time create or acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and the Wholly Owned Subsidiaries of the Borrower Company may create or acquire new Wholly Owned Subsidiaries, provided that:
(a) Concurrently with (and in any event within 10 Business Days after) the creation or direct or indirect acquisition by of any new Subsidiary, the Borrower thereof, each such new Wholly Owned Subsidiary (unless such Subsidiary is a Designated Non-Guarantor Subsidiary) Company will execute and deliver to the Agent Investors:
(i) Except with respect to non-Wholly Owned Subsidiaries (other than any such Subsidiary operating Pure Earth Energy if and when acquired), the Guaranty or a joinder to the Subsidiary Guaranty, executed by such new Subsidiary, pursuant to which such new Wholly Owned Subsidiary shall become a guarantor thereunder and shall agree to guarantee the payment in full of the Obligations of the Borrower Company under this Agreement and the other Credit Investment Documents, and ;
(ii) upon the request of the Investors, a joinder written legal opinion of counsel to such Subsidiary addressed to the Subsidiary Pledge and Security Agreement, pursuant to which such new Wholly Owned Subsidiary shall grant to the Agent a first priority Lien upon and security interest in its accounts receivable, inventory, equipment, general intangibles and other personal property as Collateral for its obligations under the Subsidiary Guaranty, subject only to Permitted Liens;
(b) Concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by the Borrower, the Borrower will execute and deliver to the Agent an amendment or supplement to the Borrower Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Borrower shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank; and concurrently with the creation or acquisition of any new Wholly Owned Subsidiary the Capital Stock of which is directly owned by another Wholly Owned Subsidiary (the "Parent Subsidiary"), the Parent Subsidiary will execute and deliver to the Agent a joinder, amendment or supplement (as applicable) to the Subsidiary Pledge and Security Agreement, pursuant to which all of the Capital Stock of such new Wholly Owned Subsidiary and any promissory notes from such new Wholly Owned Subsidiary to the Parent Subsidiary shall be pledged to the Agent, together with the certificates evidencing such Capital Stock and undated stock powers duly executed in blank and any such promissory notes duly endorsed in blank;
(c) As promptly as reasonably possible, the Borrower and its Subsidiaries will deliver any such other documents, certificates and opinions (including opinions of local counsel in the jurisdiction of organization of each such new Wholly Owned Subsidiary)Investors, in form and substance reasonably satisfactory to the AgentRequired Investors, which shall cover such matters relating to such Subsidiary and the creation or acquisition thereof incident to the transactions contemplated by this Agreement and this Section 5.8 and the other Investment Documents as set forth in the legal opinion of counsel delivered to the Investors on the Closing Date;
(iii) (A) a copy of the certificate of incorporation (or other charter documents) of such Subsidiary, certified by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary, (B) a copy of the bylaws or similar organizational document of such Subsidiary, certified on behalf of such Subsidiary by the corporate secretary or assistant secretary of such Subsidiary, (C) an original certificate of good standing for such Subsidiary issued by the applicable Governmental Authority of the jurisdiction of incorporation or organization of such Subsidiary and (D) copies of the resolutions of the board of directors and, if required, stockholders or other equity owners of such Subsidiary authorizing the execution, delivery and performance of the agreements, documents and instruments executed pursuant to Section 5.8(a), certified on behalf of such Subsidiary by an Authorized Officer of such Subsidiary, all in form and substance reasonably satisfactory to the Investors;
(iv) a certificate of the secretary or an assistant secretary of such Subsidiary as to the incumbency and signature of the officers executing agreements, documents and instruments executed pursuant to Section 5.8(a);
(v) a certificate as to the solvency of such Subsidiary, addressed to the Investors, dated as of the date of creation or acquisition of such Subsidiary and in form and substance reasonably satisfactory to the Investors;
(vi) evidence satisfactory to the Investors that no Event of Noncompliance shall exist immediately before or after the creation or acquisition of such Subsidiary or be caused thereby; and
(vii) a certificate executed by an Authorized Officer of each of the Company and such Subsidiary, which shall constitute a representation and warranty by the Company and such Subsidiary as of the date of the creation or acquisition of such Subsidiary that all conditions contained in this Agreement to such creation or acquisition have been satisfied, in form and substance reasonably satisfactory to the Investors;
(b) As promptly as reasonably possible, the Company and its Subsidiaries will deliver any such other documents and certificates as the Agent Required Investors may reasonably request in connection therewith therewith, in form and will take such other action as the Agent may substance reasonably request to create in favor of the Agent a first priority perfected security interest in the Collateral being pledged pursuant satisfactory to the documents described above, subject only to Permitted LiensRequired Investors; and
(dc) Each newly formed or acquired Wholly Owned No Subsidiary shall hold assets located solely in, and shall may be organized under the laws of any jurisdiction of, the United States of Americaa Foreign Subsidiary.
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