Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered. (b) In addition to and not in lieu of the rights and obligations of the parties under clause (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000 and with respect to which Receivables would be given eligibility pursuant to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”), the UK Borrower shall cause to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Valuevalue for purposes of calculating the Domestic Borrowing Base or the Multicurrency Borrowing Base, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under clause (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000 and with respect to which Receivables would be given eligibility pursuant to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”), the UK Borrower shall cause to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing BankBanks, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrowers, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the “Required Cross-Border Opinions”). In addition, within 90 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrowers, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrowers and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary.
(c) In addition to and not in lieu of the rights and obligations of the parties under clauses (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent’s written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts, Currency Agreement or Commodity Agreements to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower.
(d) In addition to and not in lieu of the rights and obligations of the parties under clauses (a), (b) and (c) above, promptly, but in any event within 90 days, following the Administrative Agent’s written request (or such later date as is agreed to in writing by the Administrative Agent), and at the expense of the applicable Borrower or Subsidiary thereof, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and substance reasonably satisfactory to the Administrative Agent, any and all such further instruments and documents, including, without limitation, all amendments, modifications, supplements, restatements or reaffirmations of any existing instruments or documents, in each case as are reasonably requested by the Administrative Agent in order to create and/or maintain a valid and perfected security interest of the Administrative Agent in any Foreign Collateral.
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each Borrower shall execute Execute any and deliverall further documents, financing statements, agreements and instruments, and cause take all such further actions (including the Borrower Subsidiaries to execute filing and deliverrecording of financing statements and other documents), within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have may reasonably request (including, without limitation those required by applicable law), to satisfy the right Collateral Requirement and to establish appropriate Availability Reserves based on cause the value of such CollateralCollateral Requirement to be and remain satisfied, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu all at the expense of the rights Loan Parties and obligations of the parties under clause (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000 and with respect to which Receivables would be given eligibility pursuant to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”), the UK Borrower shall cause to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed provide to the Administrative Agent, the Lenders and the Issuing Bankfrom time to time upon reasonable request, in form and substance evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject in each case to paragraph (g) below.
(b) If any asset that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $5,000,000 is acquired by the Borrower or any Subsidiary Loan Party after the Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Collateral Document that become subject to the Lien of such Collateral Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Administrative Agent pursuant to Section 5.10(g) or the Collateral Documents) will (i) promptly as practicable notify the Administrative Agent thereof and (ii) take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 5.10, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) [Intentionally Omitted.]
(d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, without limiting within twenty (20) Business Days after the generality date such Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree (or, with respect to clauses (g), (h), (i), (j) and (m) of the foregoingdefinition of “Collateral Requirement”, concluding thatwithin 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree, as applicable), cause the Collateral Requirement to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within fifty (50) Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree, cause the Collateral Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary directly owned by the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(i) Furnish to the Administrative Agent promptly (and in any event within 30 days after such change or such longer period as the Administrative Agent may agree) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period (or such longer period as the Administrative Agent may agree), under the laws UCC that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Material Foreign Account Debtor JurisdictionSecured Parties with the same priority as prior to such change and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) all fee-owned real property and any leasehold interests in real property, (ii) any vehicle and other assets subject to certificates of title and letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by the filing of customary financing statements) and commercial tort claims with a value reasonably estimated to be less than $5,000,000, (iii) cash, deposit accounts and securities accounts (it being understood and agreed (1) that the Lien of the Administrative Agent may extend to such assets pursuant to the terms of the Guarantee and Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than the filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly) and (2) that there shall be no lockbox arrangements nor any control agreements relating to any deposit accounts, securities accounts, commodities accounts or any other bank accounts), (iv) any Excluded Securities, (v) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation not in violation of Section 6.09(c) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (vi) those assets as to which the Borrower and the Administrative Agent shall reasonably agree that the costs or other consequence of pledging, obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby, (vii) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (viii) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any other Loan Party) (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (ix) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (x) pending United States “intent-to-use” trademark or service xxxx applications filed pursuant to Section 1(b) of the Xxxxxx Xxx 00 X.X.X. §0000 unless and until a verified statement of use or an amendment to allege use under Sections 1(c) and 1(d) of the Xxxxxx Act has been filed with and accepted by the United States Patent and Trademark Office, (xi) all assets of Holdings other than Equity Interests in the Borrower and other related assets pledged pursuant to the Guarantee and Collateral Agreement, (xii) other customary exclusions under applicable local law or in applicable local jurisdictions and (xiii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of Excluded Property. Notwithstanding anything to the contrary in this Agreement, the Guarantee and Collateral Agreement, or any other Loan Document, (i) the courts Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Effective Date for the perfection of security interests in the assets of the Material Foreign Account Debtor Jurisdiction Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished by the time or times at which it would recognize otherwise be required by this Agreement or the stated choice of law governing the Receivables (being Netherlands lawother Loan Documents, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under no foreign law governed security documents shall be required and (iii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral Requirement and the Collateral Documents shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction or in respect light of applicable law, regulation, prevailing industry practices or availability on commercially reasonable terms, as otherwise agreed between the Administrative Agent and the Borrower.
(h) The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of such Receivables obtained actions on Schedule 5.10(h) (or within such longer timeframes as the Administrative Agent shall permit in the courts its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the jurisdiction whose law governs Loan Documents with respect to the Receivables would taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be enforced completed in the Material Foreign Account Debtor Jurisdiction;accordance with this Section 5.10(h)).
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each Borrower shall execute Execute any and deliverall further documents, financing statements, agreements and instruments, and cause take all such further actions (including the Borrower Subsidiaries to execute filing and deliverrecording of financing statements and other documents), within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have may reasonably request (including, without limitation those required by applicable law), to satisfy the right Collateral Requirement and to establish appropriate Availability Reserves based on cause the value of such CollateralCollateral Requirement to be and remain satisfied, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu all at the expense of the rights Loan Parties and obligations of the parties under clause (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000 and with respect to which Receivables would be given eligibility pursuant to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”), the UK Borrower shall cause to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed provide to the Administrative Agent, the Lenders and the Issuing Bankfrom time to time upon reasonable request, in form and substance evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject in each case to paragraph (g) below.
(b) If any asset that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $10,000,000 is acquired by the Borrower or any Subsidiary Loan Party after the Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Collateral Document that become subject to the Lien of such Collateral Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Administrative Agent pursuant to Section 5.10(g) or the Collateral Documents) will (i) promptly as practicable notify the Administrative Agent thereof and (ii) take or cause the Subsidiary Loan Parties to take such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section 5.10, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) [Intentionally Omitted.]
(d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, without limiting within twenty (20) Business Days after the generality date such Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree (or, with respect to clauses (g), (h), (i), (j) and (m) of the foregoingdefinition of “Collateral Requirement”, concluding thatwithin 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree, as applicable), cause the Collateral Requirement to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below. 93
(e) If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party, within fifteen (15) Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree), notify the Administrative Agent thereof and, within fifty (50) Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent shall agree, cause the Collateral Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary directly owned by the Borrower or any Subsidiary Loan Party, subject in each case to paragraph (g) below.
(i) Furnish to the Administrative Agent promptly (and in any event within 30 days after such change or such longer period as the Administrative Agent may agree) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period (or such longer period as the Administrative Agent may agree), under the laws UCC that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Material Foreign Account Debtor JurisdictionSecured Parties with the same priority as prior to such change and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) all fee-owned real property and any leasehold interests in real property, (ii) any vehicle and other assets subject to certificates of title and letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by the filing of customary financing statements) and commercial tort claims with a value reasonably estimated to be less than $10,000,000, (iii) cash, deposit accounts and securities accounts (it being understood and agreed (1) that the Lien of the Administrative Agent may extend to such assets pursuant to the terms of the Guarantee and Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than the filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly) and (2) that there shall be no lockbox arrangements nor any control agreements relating to any deposit accounts, securities accounts, commodities accounts or any other bank accounts), (iv) any Excluded Securities, (v) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation not in violation of Section 6.09(c) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (vi) those assets as to which the Borrower and the Administrative Agent shall reasonably agree that the costs or other consequence of pledging, obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby, (vii) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (viii) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any other Loan Party) (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (ix) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of Article 9 of the UCC), (x) pending United States “intent-to-use” trademark or service xxxx 94 applications filed pursuant to Section 1(b) of the Xxxxxx Xxx 00 X.X.X. §0000 unless and until a verified statement of use or an amendment to allege use under Sections 1(c) and 1(d) of the Xxxxxx Act has been filed with and accepted by the United States Patent and Trademark Office, (xi) all assets of Holdings other than Equity Interests in the Borrower and other related assets pledged pursuant to the Guarantee and Collateral Agreement, (xii) other customary exclusions under applicable local law or in applicable local jurisdictions and (xiii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided that the Borrower may in its sole discretion elect to exclude any property from the definition of Excluded Property. Notwithstanding anything to the contrary in this Agreement, the Guarantee and Collateral Agreement, or any other Loan Document, (i) the courts Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Effective Date for the perfection of security interests in the assets of the Material Foreign Account Debtor Jurisdiction Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished by the time or times at which it would recognize otherwise be required by this Agreement or the stated choice of law governing the Receivables (being Netherlands lawother Loan Documents, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under no foreign law governed security documents shall be required and (iii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral Requirement and the Collateral Documents shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction or in respect light of applicable law, regulation, prevailing industry practices or availability on commercially reasonable terms, as otherwise agreed between the Administrative Agent and the Borrower.
(h) The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of such Receivables obtained actions on Schedule 5.10(h) (or within such longer timeframes as the Administrative Agent shall permit in the courts its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the jurisdiction whose law governs Loan Documents with respect to the Receivables would taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be enforced completed in the Material Foreign Account Debtor Jurisdiction;accordance with this Section 5.10(h)).
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each Borrower of Holdings and the Borrowers shall execute and deliver, and cause the Borrower its Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “"post-closing items” " on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under clause (a) above, (i) at any time and from time to time, promptly following the Agent's written request and at the expense of the applicable Person, each of Holdings and the Borrowers agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) in the event that the average aggregate Revolving Credit Availability under all Credit Facilities during any jurisdiction where account debtors thirty day period is less than $10,000,000, each Borrower agrees to grant, and cause any of its Subsidiaries to grant, to the Agent or the Canadian Agent, as applicable, a security interest in any additional property which, as of the UK Closing Date, does not constitute Collateral. Notwithstanding the foregoing, the granting of such further assurances or security interest under this Section 8.11(b) shall not be required if it would (w) be prohibited by other Contractual Obligations to which such Borrower are located or such Subsidiary is a party, (eachx) be prohibited by applicable law, (y) attach to assets constituting the "Term Loan Lenders Collateral" under (and as defined in) the Intercreditor Agreement or (z) result in material adverse tax consequences to the Domestic Borrowers, taken as a “Foreign Account Debtor”) becomes a jurisdiction where whole, or the aggregate amount owing by Foreign Account Debtors in Canadian Borrower, individually. The obligation to provide such jurisdiction is in excess of $1,000,000 and further assurances or additional security interests may be avoided with respect to any Borrower or Subsidiary if the assets with respect to which Receivables the related security arrangements are proposed to be altered are excluded from the Domestic Borrowing Base or the Canadian Borrowing Base, as applicable. In the event that the Company notifies the Agent that the granting of such further assurances or additional security interests requested by the Agent would be given eligibility pursuant reasonably likely to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”)cause material adverse tax consequences, the UK Borrower Agent shall cause use its best efforts to be issuedwork with the Company to, within 45 days after and will consider such structures prepared by the date on Company which a jurisdiction becomes a Material Foreign Account Debtor Jurisdictionwould, an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in avoid or minimize such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;adverse tax consequences.
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “"post-closing items” " on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under clause CLAUSE (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a with respect to each jurisdiction where the aggregate amount of Receivables owing by Foreign Account Debtors account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to clauses CLAUSES (i) and (ii) of the defined term “"Eligible Foreign Receivable” " (each, a “Material Foreign Account Debtor Jurisdiction”"MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall cause shall, on or before June 29, 2002, with respect to be issued, within 45 days after the date on which a jurisdiction becomes a jurisdictions constituting Material Foreign Account Debtor JurisdictionJurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of Australia.
Appears in 1 contract
Samples: Credit Agreement (Hyster Overseas Capital Corp LLC)
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries Credit Party Entities to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under clause (a) above, in the event that If at any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is time Hyster Singapore Pte Ltd. has total assets in excess of $1,000,000 5,000,000, 65% of the Capital Stock issued by such Person shall be pledged for the benefit of the Administrative Agent pursuant to a Pledge Agreement.
(c) At any time and from time to time, (i) promptly following the Administrative Agent’s written request and at the expense of the applicable Person, Borrower agrees to duly execute and deliver, and to cause Credit Party Entities to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to which Receivables would be given eligibility pursuant to clauses (i) such Collateral and (ii) promptly upon the request of the defined term “Eligible Foreign Receivable” (eachAdministrative Agent, a “Material Foreign Account Debtor Jurisdiction”)assign to the Administrative Agent, the UK Borrower shall cause pursuant to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed assignment in form and substance satisfactory to the Administrative Agent, the Lenders right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which Borrower or such Credit Party Entity is a party (except to the extent such prohibition is rendered ineffective under the Uniform Commercial Code), (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to Borrower.
(d) Upon the request of the Administrative Agent, Borrower shall, and shall cause the Issuing Bankother Credit Parties to, execute and deliver to the Administrative Agent, for the benefit of the Holders, immediately upon the acquisition or leasing of any Real Property with a fair market value in excess of $2,500,000 (as reasonably determined by the Administrative Agent) by Borrower or any other Credit Party, a Mortgage, assignment or other appropriate instrument evidencing a Lien upon any such Real Property, lease or interest, together with such title insurance policies (mortgagee’s form), certified surveys, environmental site assessment reports, zoning reports, and local counsel opinions with respect thereto and such other agreements, documents and instruments which the Administrative Agent deems reasonably necessary or desirable, the same to be in form and substance reasonably satisfactory acceptable to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, and to be subject only to (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; Liens permitted under Section 9.03 and (ii) a judgment under or in respect such other Liens as the Administrative Agent and Requisite Lenders may reasonably approve, it being understood that (x) the granting of such Receivables additional security for the Obligations is a material inducement to the execution and delivery of this Agreement by each Lender, and (y) with respect to any Credit Agreement documents required under this clause (d) with respect to leases, it shall not be a breach of this clause (d) if the consent of the lesser is required for such delivery but is not obtained and Borrower has exercised commercially reasonable efforts to obtain such consent. If the Real Property located at 1000 X. Xxxxxxxx Street, Danville, Illinois 61832 is not sold to a Person that is not a Credit Party within eighteen (18) months of the Closing Date, then upon the request of the Administrative Agent, Borrower shall execute and deliver or cause to be delivered, as the case may be, to the Administrative Agent, for the benefit of the Holders, the documents described in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;preceding sentence with respect to such Real Property.
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as “post-closing items” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Valuevalue for purposes of calculating the Domestic Borrowing Base or the Multicurrency Borrowing Base, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under clause (a) above, in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount owing by Foreign Account Debtors in such jurisdiction is in excess of $1,000,000 and with respect to which Receivables would be given eligibility pursuant to clauses (i) and (ii) of the defined term “Eligible Foreign Receivable” (each, a “Material Foreign Account Debtor Jurisdiction”), the UK Borrower shall cause to be issued, within 45 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing BankBanks, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction;; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrowers, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the “Required Cross-Border Opinions”). In addition, within 90 days after the date on which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrowers, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrowers and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary.
(c) In addition to and not in lieu of the rights and obligations of the parties under clauses (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts, Currency Agreement or Commodity Agreements to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower.
(d) In addition to and not in lieu of the rights and obligations of the parties under clauses (a), (b) and (c) above, promptly, but in any event within 90 days, following the Administrative Agent's written request (or such later date as is agreed to in writing by the Administrative Agent), and at the expense of the applicable Borrower or Subsidiary thereof, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and substance reasonably satisfactory to the Administrative Agent, any and all such further instruments and documents, including, without limitation, all amendments, modifications, supplements, restatements or reaffirmations of any existing instruments or documents, in each case as are reasonably requested by the Administrative Agent in order to create and/or maintain a valid and perfected security interest of the Administrative Agent in any Foreign Collateral.
Appears in 1 contract
