Future Subsidiaries. The Company hereby covenants and agrees as follows: (a) Upon any Person becoming, after the Closing Date, a Subsidiary of the Company or (in the case of clause (a)(ii) below only) upon the Company or any Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof and: (i) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, the Subsidiary Security Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and (ii) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company or any Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary), as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require; provided, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement (or a supplement thereto), nor will the Company or any Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote. (b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. (c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 2 contracts
Samples: Credit Agreement (Formica Corp), Credit Agreement (Formica Corp)
Future Subsidiaries. The Company hereby covenants From and agrees after the Restatement Date, upon (i) any Person becoming a direct or indirect Subsidiary of any Loan Party (including as follows:a Division Successor pursuant to a Division) (other than an Excluded Subsidiary) or (ii) any Subsidiary ceasing to constitute an Excluded Subsidiary (including as a Division Successor pursuant to a Division), the Borrower shall notify the Administrative Agent of each such event or transaction and, within forty-five (45) days from the date such event occurs or the transaction is consummated (or with respect to any Subsidiary that is a Division Successor, substantially concurrently with consummation of the applicable Division) (or such later date as may from time to time be approved by the Administrative Agent in its sole discretion):
(a) Upon such Subsidiary shall (A) become a party to the Guaranty, the Security Agreement and any Person becomingother applicable Collateral Document in a manner reasonably satisfactory to the Administrative Agent, after (B) if it maintains any Deposit Accounts (other than Excluded Accounts), enter into a Deposit Account Control Agreement with a Deposit Account Bank and (C) pledge and deliver (if applicable) to the Closing Date, a Subsidiary Administrative Agent in accordance with the terms of the Company or (in the case of clause (a)(ii) below only) upon the Company or any Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof andCollateral Documents:
(i) all of the Company outstanding Equity Interests owned directly by such Subsidiary (but, in the case of an Excluded Foreign Subsidiary, not more than 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of such Excluded Foreign Subsidiary shall promptly cause be so pledged), along with undated stock or other powers for such certificates, executed in blank (or, if any such Equity Interests are uncertificated, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been pledged to and perfected by the Administrative Agent in accordance with the U.C.C. or any similar Law which may be applicable); and
(ii) all notes evidencing intercompany Indebtedness in excess of $500,000 in favor of such Subsidiary;
(b) the Administrative Agent shall have received from such Subsidiary that is copies of U.C.C. or similar search reports certified by a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver party reasonably acceptable to the Administrative Agent, with counterparts for each Lenderdated a date reasonably near (but prior to) the date of any such Person becoming a direct or indirect Subsidiary of the Parent, listing all effective financing statements, tax liens and judgment liens which name such Person as the Subsidiary Security debtor and which are filed in the jurisdictions in which filings are to be made pursuant to this Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to and the extent required by clause (b) of Section 7.1.8, a Mortgage)other Loan Documents, together with Uniform Commercial Code copies of such financing statements (Form UCC-1none of which (other than Liens permitted under this Agreement or which shall be terminated by or on the date such acquisition is consummated) executed and delivered by shall cover any of the Collateral); and
(c) the Administrative Agent shall have received from such U.S. Subsidiary Subsidiary, acknowledgment copies of properly filed U.C.C. or similar financing statements or such other evidence of filing or delivery for filing as may be acceptable to the Administrative Agent, naming each such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing filed under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, U.C.C. (or similar Laws which may be applicable) of all jurisdictions as may be necessary or, in the opinion or reasonably requested of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant on the assets of such Subsidiary that is subject to the Subsidiary Security Agreement or a Mortgage(including, with respect to any Intellectual Property Collateral, appropriate trademark, copyright and patent security supplements with the United States Patent and Trademark Office and the United States Copyright Office, as applicable). The foregoing shall be accompanied with other documentary evidence, reasonably requested by the case may be (other than the perfection of security interests Administrative Agent, in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to be delivered, a form reasonably satisfactory to the Administrative Agent under a Pledge Agreement that evidences the foregoing, including copies of the resolutions of the board of directors (or a supplement theretoequivalent body) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted authorizing the relevant transactions, copies of such Subsidiary) owned by the Company or any Subsidiary ’s Organizational Documents, incumbency certificates of such Subsidiary, opinions of legal counsel and evidence of the Company insurance required to be maintained pursuant to Section 7.4; provided that any Foreign Subsidiary that is not an Excluded Foreign Subsidiary shall only be required to enter into a U.S. Subsidiary Guaranty or a Subsidiary Guarantor (other than guaranty agreement supplement or take any Unrestricted Subsidiary), as action to pledge its assets under the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; togetherCollateral Documents if, in each case, with such opinions, in form and substance and from counsel satisfactory (x) the Administrative Agent reasonably determines that the benefits to the AgentsLenders of having such a pledge by such Loan Party governed by foreign Laws or having a Foreign Subsidiary enter into such guaranty or guaranty supplement and pledge its assets outweighs the cost to the Borrower and its Subsidiaries of such actions and (y) the Administrative Agent requests such foreign Law pledge, as the Agents may reasonably require; providedguaranty, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary guaranty supplement and/or pledge. Nothing contained in this Section 7.7 shall be required construed as consent to execute and deliver a Mortgage form or a Subsidiary Security Agreement (or a supplement thereto), nor will the Company or acquire any Subsidiary of after the Company be required to deliver in pledge Restatement Date that is not otherwise permitted pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to votethis Agreement.
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Samples: Credit Agreement (Wayfair Inc.)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person (other than the Receivables Subsidiaries) becoming, after the Closing Date, a Subsidiary of the Company Company, or (in the case of clause (a)(iib) below only) upon the Company or any U.S. Subsidiary of (other than the Company Receivables Subsidiaries) acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof of such acquisition, and:
(ia) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, a supplement to the Subsidiary Co-Obligation Agreement and Guaranty and a supplement to the Subsidiary Security Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and
(iib) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company or any U.S. Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary)Company, as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require; provided, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and 124 133 deliver a Mortgage or Mortgage, a supplement to the Subsidiary Co-Obligation Agreement and Guaranty, a supplement to the Security Agreement (or a supplement thereto)to a Pledge Agreement, nor will the Company or any Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Future Subsidiaries. The Company hereby covenants and agrees as follows:
Without limiting the effect of any provision contained herein (a) Upon including Section 8.3), upon any Person becoming, after the Closing Datedate hereof, a Subsidiary of the Company or (in the case of clause (a)(ii) below only) upon the Company or any Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof and:
(i) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, the Subsidiary Security Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary Borrower (other than any Unrestricted Subsidiary or a Restricted Subsidiary that is not a Material Subsidiary), including any Person that was a Restricted Subsidiary, but not a Material Subsidiary, but which becomes a Material Subsidiary through internal growth or otherwise, or upon the Borrower acquiring additional capital stock of any existing Subsidiary the capital stock of which is then pledged under the Pledge Agreement:
(a) owned by in the Company or any event such Person is a Domestic Subsidiary, the Borrower shall cause such Person, if not theretofore a party to the Guaranty, to execute a supplement to the Guaranty for the purpose of becoming a guarantor thereunder; and
(b) in the event such Person is a direct Subsidiary of the Company that Borrower, the Borrower shall, pursuant to the Pledge Agreement, pledge to the Administrative Agent for the benefit of the Lenders (free and clear of any other pledges relating to such Person or any of its Subsidiaries) all of the outstanding shares of such capital stock of such Subsidiary owned directly by it (provided, that, in the event such Subsidiary is a U.S. Subsidiary or a Subsidiary Guarantor (other Foreign Subsidiary, the Borrower shall not be required to pledge more than any Unrestricted 65% of the outstanding shares of the capital stock of such Subsidiary), as the case may be, along with undated stock powers for such certificates, executed in blank, blank (or, if any securities subject thereto such shares of capital stock are uncertificated securitiesuncertificated, confirmation and evidence satisfactory to the Administrative Agent shall have obtained "control" (as defined that the security interest in such uncertificated securities has been perfected by the Administrative Agent in accordance with Section 8-313 and Section 8-321 of the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting as in effect in the perfection State of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require; provided, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement (or a supplement thereto), nor will the Company New York or any Subsidiary of the Company similar law which may be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to voteapplicable).
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Samples: Credit Agreement (E&s Holdings Corp)
Future Subsidiaries. The Company hereby covenants and agrees as followsEach Borrower shall, at least 30 days prior to the date on which any Person becomes a direct or indirect Subsidiary of such Borrower after the Closing Date, notify the Agent of that fact and, on or prior to such date:
(a) Upon any Person becoming, after the Closing Date, a Subsidiary of the Company or (in the case of clause (a)(ii) below only) upon the Company or any Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof and:
(i) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts Agent a Subsidiary Assumption Agreement and the Note Allonges for each Lender, the Subsidiary Security Agreement all then outstanding Notes (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) which agreement and allonges shall also have been executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as all other then existing Borrowers), a Pledge Agreement, a Security Agreement and an Intellectual Property Security Agreement, to deliver to the debtor and Agent a letter from the Administrative Process Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, to such Subsidiary substantially in the case form of real propertythe letters so delivered by the Process Agent as to the Borrowers on the Closing Date and to take all such further actions and execute and file all such further documents and instruments and obtain such search reports 91 101 (including actions, of all jurisdictions documents and instruments comparable to those described in Section 3.1(h), (i), (j), (m) and (n)) as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company or any Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary), as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities create in favor of the Administrative Agent pursuant Agent, for the benefit of Lenders, a valid and perfected first priority Lien on all of the property and assets of such Subsidiary subject to Permitted Liens;
(b) deliver to the terms Agent (i) certified copies of such Pledge Agreement; togetherSubsidiary's certificate or articles of incorporation, together with a good standing certificate from the Secretary of State of the jurisdiction of its incorporation and each other state in which such Person is qualified as a foreign corporation to do business and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of each caseof such jurisdictions, with each to be dated a recent date prior to their delivery to the Agent, (ii) a copy of such opinionsSubsidiary's by-laws, certified by its corporate secretary or an assistant secretary as of a recent date prior to their delivery to the Agent, (iii) a certificate executed by the secretary or an assistant secretary of such Subsidiary as to (x) stating that the attached resolutions of the Board of Directors of such Subsidiary approve and authorize the execution, delivery and performance of such Loan Documents, are in full force and effect and have not been modified or amended and (y) certifying the incumbency and signatures of the Responsible Officers of such Subsidiary executing such Loan Documents, and (iv) a favorable opinion of counsel to such Borrower, in form and substance and from counsel reasonably satisfactory to the AgentsAgent, as to (w) the Agents due organization and good standing of such Subsidiary, (x) the due authorization, execution and delivery by such Subsidiary of such Loan Documents (and by all other then existing Borrowers of such Subsidiary Assumption Agreement and Note Allonges), (y) the enforceability of such Loan Documents against such Subsidiary (and of such Subsidiary Assumption Agreement and Note Allonges against such other Borrowers) and (z) such other matters (including matters relating to the creation and perfection of Liens in any Collateral pursuant to such Loan Documents and the Pledge) as the Agent may reasonably require; providedrequest, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement (or a supplement thereto), nor will the Company or any Subsidiary all of the Company foregoing to be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, reasonably satisfactory in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.Agent; and
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents comply with Section 7.18 in respect of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Samples: Credit Agreement (Silver Cinemas International Inc)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Effective Date, a U.S. Subsidiary of Holdings or the Company Borrower that is a Restricted Subsidiary, or (in the case of clause (a)(iib) below only) upon Holdings, the Company Borrower or any such Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary that is a Restricted Subsidiary, in each case other than an Unrestricted Subsidiarypursuant to the Acquisition, the Company Borrower shall so notify the Agents thereof Administrative Agent, and:
(ia) Holdings or the Company Borrower shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Collateral Agent, with counterparts for each Lender, a supplement to the Subsidiary Guaranty and a supplement to the Pledge and Security Agreement (or a supplement thereto) (and, if such U.S. Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code UCC financing statements (Form form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Collateral Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code UCC and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative Collateral Agent, desirable to perfect the security interest of the Administrative Collateral Agent pursuant to the Subsidiary Pledge and Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles, foreign intellectual property or inventory and equipment located at document service centers maintained by Holdings, the Borrower or any of the Restricted Subsidiaries at sites owned or leased by clients of Holdings, the Borrower or any such Restricted Subsidiary); and
(iib) Holdings or the Company Borrower shall promptly deliver, or cause to be delivered, to the Administrative Agent under a the Pledge and Security Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) that are certificated securities and are owned by Holdings, the Company Borrower or any Restricted Subsidiary of Holdings or the Company Borrower that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary), as the case may be, along with undated stock powers of transfer for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the AgentsCollateral Agent, as the Agents Administrative Agent may reasonably require; provided, however, provided that notwithstanding the foregoing, no Non-U.S. Foreign Subsidiary shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement (supplement to the Guaranty or a supplement thereto)to the Pledge and Security Agreement, nor will Holdings, the Company Borrower or any U.S. Subsidiary of the Company Borrower be required to deliver grant a security interest in pledge pursuant to Voting Stock of a Pledge Agreement Foreign Subsidiary in excess of 65% of the total combined voting power of all classes of Capital Voting Stock of a Non-U.S. Subsidiary entitled to votesuch Foreign Subsidiary.
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Samples: Lender Consent Letter (Merrill Corp)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Date, a Subsidiary of the Company or (in the case of clause (a)(ii) below only) upon the Company or any Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted Subsidiary, the Company shall notify the Agents thereof andCause:
(i) each Subsidiary of any Obligor not in existence on the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) Closing Date, to execute and deliver to the Administrative AgentAgent promptly and in any event within 10 Business Days after the formation, with counterparts for each Lenderacquisition or change in status thereof, the (i) a Joinder Agreement, pursuant to which such Subsidiary Security shall be made a party to this Agreement as a Borrower, (or ii) a supplement theretoto the Guaranty and Collateral Agreement, together with (A) (and, if certificates evidencing all of the Equity Interests of any Person owned by such Subsidiary owns any real propertyrequired to be pledged under the terms of the Guaranty and Collateral Agreement, (B) undated stock powers for such Equity Interests executed in blank with signature guaranteed, and (C) such opinions of counsel as the Agent may reasonably request, (iii) to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code terms of this Agreement, one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien (in terms of priority, subject only to Permitted Liens) on such real property and any such other applicable recording statutes, in Related Real Estate Documents as may be reasonably required by the case of Agent with respect to each such real property, of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant and (iv) to the Subsidiary Security extent required under the terms of this Agreement, such other agreements, instruments, approvals or other documents reasonably requested by the Agent in order to create, perfect, establish the first priority of or otherwise protect any Lien purported to be covered by any such Guaranty and Collateral Agreement or a Mortgage, as Mortgage or otherwise to effect the case may be (other than the perfection of security interests in motor vehicles); and
(ii) the Company intent that such Subsidiary shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing become bound by all of the issued terms, covenants and outstanding shares of Capital Stock agreements contained in the Loan Documents and that all property and assets of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company or any Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary), as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" Excluded Assets (as defined in the Uniform Commercial Code applicable Guaranty and Collateral Agreement)) shall become Collateral for the Obligations.
(ii) each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 10 Business Days after the perfection formation or acquisition of such securitiesSubsidiary a Pledge Amendment (as defined in the Guaranty and Collateral Agreement), together with (i) over certificates evidencing all of the Equity Interests of such securitiesSubsidiary required to be pledged under the terms of the Guaranty and Collateral Agreement, (ii) undated stock powers or other appropriate steps instruments of assignment for such Equity Interests executed in blank with signature guaranteed, (iii) such opinions of counsel as the Agent may reasonably request and (iv) such other agreements, instruments, approvals or other documents reasonably requested by the Agent.
(iii) Notwithstanding the foregoing, no Foreign Subsidiary shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant be required to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agentsbecome an Obligor (and, as such, shall not be required to deliver the Agents may reasonably requiredocuments required by clause (i) above or become a Guarantor; provided, however, that notwithstanding if the foregoingEquity Interests of a Foreign Subsidiary are owned by an Obligor, no Non-U.S. Subsidiary such Obligor shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement all such documents, instruments, agreements (or a supplement thereto)including, nor will without limitation, at the Company or any Subsidiary reasonable request of the Company be required Agent, a pledge agreement governed by the laws of the jurisdiction of the organization of such Foreign Subsidiary) and certificates described in clause (ii) above to deliver the Agent, and take all commercially reasonable actions reasonably requested by the Agent or otherwise necessary to grant and to perfect a first‑priority Lien (subject to Permitted Liens) in pledge pursuant to a Pledge Agreement favor of the Agent, for the benefit of the Agents and the Lenders, in excess of 65% of the total combined voting power Equity Interests of such Foreign Subsidiary and 100% of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
(b) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents Equity Interests of such event, and the Company Foreign Subsidiary owned by such Obligor but in no event shall promptly cause such Foreign Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, become a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of Guarantor under this Agreement or acquired or created hereafter, as a partnership or a branch any of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also ceaseother Loan Documents.
Appears in 1 contract
Samples: Financing Agreement (Select Interior Concepts, Inc.)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Effective Date, a Subsidiary (other than a Subsidiary with assets of the Company less than $10,000) of either Borrower, or (in the case of clause (a)(ii) below only) upon the Company either Borrower or any Subsidiary of the Company thereof acquiring additional Capital Stock of any existing Subsidiary Subsidiary, such Borrower shall notify its respective Agent of such acquisition, and
(a) such Borrower shall promptly (and, in any event, within three Business Days in the case of the matters referred to below (other than an Unrestricted Subsidiary, in respect of a Mortgage on a Premises) and 90 days in respect of the Company shall notify the Agents thereof and:
(imatters referred to below relating to a Mortgage) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative its respective Agent, with counterparts for each Lender, the a US Subsidiary Guaranty (if such Subsidiary is a US Credit Facilities Guarantor) or a UK Subsidiary Guaranty (if such Subsidiary is a UK Credit Facilities Guarantor) or a supplement to a Subsidiary Guaranty and a US Subsidiary Security Agreement (if such Subsidiary is a US Credit Facilities Guarantor) or a UK Subsidiary Security Agreement (if such Subsidiary is a UK Credit Facilities Guarantor) or a supplement thereto) to a Subsidiary Security Agreement (and, if such Subsidiary owns any real property, to Premises having a value as determined in good faith by the extent required by clause (b) Agents in excess of Section 7.1.8$1,000,000, a Mortgage), together with Uniform Commercial Code financing statements (Form form UCC-1) executed and delivered by such U.S. the Subsidiary naming such U.S. the Subsidiary as the debtor and the Administrative applicable Agent as the secured party, or other similar instruments or documents, in appropriate form for filing filed under the Uniform Commercial Code (or under English law in the case of a UK Subsidiary), and any other applicable recording statutes, in the case of real propertyPremises, of in form for filing or recording, as applicable, in all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative such Agent, desirable to perfect or grant the security interest of the Administrative such Agent pursuant to the a Subsidiary Security Agreement or a Mortgage, as the case may be (other than which filings may be made at such time as such Agent may deem appropriate under the perfection of security interests in motor vehiclescircumstances); and
(iib) the Company such Borrower shall promptly (and in any event within three Business Days) deliver a supplement to its respective Pledge Agreement and deliver, or cause to be delivered, to the Administrative respective Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company such Borrower or any Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary)such Borrower, as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative confirmation and evidence satisfactory to such Agent shall that appropriate book entries have obtained "control" (as defined been made in the Uniform Commercial Code applicable to relevant books or records of a financial intermediary or the perfection issuer of such securities) over such securities, or other appropriate steps shall have been taken as the case may be, under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative such Agent pursuant to the terms of such a Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agentssuch Agent, as the Agents such Agent may reasonably requirerequire to be delivered within 95 days thereafter (or such later number of days as such Agent may approve) (but which opinions as to Mortgages shall consist of opinions as to the power and authority to execute and deliver the Mortgage, the due authorization of the execution and delivery of the Mortgage and the due execution and delivery of such Mortgage and, in the case of any Mortgage on Premises having a value (as determined by the US Borrower) in excess of $5,000,000 or on Premises located in the State of California, the enforceability of such Mortgage); provided, however, that notwithstanding the foregoing, (i) no Non-U.S. Subsidiary or MSG Investments shall be required to execute and deliver a Mortgage or Mortgage, a Subsidiary Security Agreement (Guaranty or a supplement thereto)to the Subsidiary Guaranty or a Security Agreement or a supplement to the Security Agreement, nor will the Company US Borrower or any Subsidiary of the Company US Borrower be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of MSG Investments or a Non-U.S. Subsidiary entitled to vote.
vote except to the extent such pledge in excess of such 65% could not reasonably be expected to result in material tax liabilities for the US Borrower (bas determined in good faith by the US Borrower) Upon at any Person time prior to June 30, 2006 and (other than ii) the Trademark Luxembourg Subsidiary shall not be required to comply with the foregoing provisions of this Section 9.1.7 except to the extent such compliance could not be reasonably expected to result in material tax liabilities for the US Borrower or any Unrestricted Subsidiary) becomingof its Subsidiaries. The Borrowers shall use their commercially reasonable efforts to complete the merger of Raven Hire Limited and certain of its Subsidiaries and the UK Borrower with and into Freepeak Limited as soon as practicable and, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such in any event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agenton or before May 13, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require2002.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon If any Person becoming, after the Closing Date, a Subsidiary of the Company or (in the case of clause (a)(ii) below only) upon the Company Party or any Subsidiary of the Company acquiring additional Capital Stock of proposes at any existing time or from time to time to form, create or acquire any Subsidiary (other than an Unrestricted SubsidiarySPE in connection with the consummation of a Securitization Transaction) or any then-existing Subsidiary ceases to be an SPE (i.e., no longer qualifies as “bankruptcy remote”), the Company shall notify the Agents thereof Purchaser in writing of the same and:
(i) , upon receipt of the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver Purchaser’s consent to the Administrative Agentformation, with counterparts for each Lender, the Subsidiary Security Agreement (creation or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock acquisition of such Subsidiary (other than pursuant to Section 9.8(e) or immediately after any Unrestricted Subsidiary) owned by the Company or any Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary)such cessation, as the case may be, along with undated stock powers for take all such certificatesaction, executed in blankand will cause each of its Subsidiaries to take all such action, or, if any securities subject thereto are uncertificated securitiesas may be necessary to cause such Subsidiary to become a Subsidiary Guarantor. Without limiting the generality of the foregoing, the Administrative Agent Company shall have obtained "control" cause such Subsidiary (as defined in the Uniform Commercial Code applicable a) to execute and deliver a joinder agreement to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinionsSubsidiary Guaranty, in form and substance and from counsel satisfactory to the AgentsPurchaser, as the Agents may reasonably require; providedpursuant to which such Subsidiary would become a Subsidiary Guarantor, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required (b) to execute and deliver a Mortgage or a Subsidiary Security Agreement (or a supplement thereto)such collateral security agreements, nor will the Company or any Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
(b) Upon any Person (instrument and other than the Trademark Subsidiary or any Unrestricted Subsidiary) becomingdocuments, after the Closing Dateincluding security agreements, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, Control Agreements and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinionsother agreements, in form and substance and from counsel satisfactory to the AgentsPurchaser, as under which such Subsidiary would grant a valid first priority security interest and lien on all of its assets, properties and rights to secure the Agents may reasonably require.
payment and performance of all obligations of such Subsidiary under the Subsidiary Guaranty; (c) If the election is made if such Subsidiary has any Subsidiaries itself, to treat any Restricted Subsidiary that is a Non-U.S. Subsidiaryexecute and deliver pledge agreements, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch together with (i) certificates representing all of the Equity Interests of any Person owned by such Subsidiary and (ii) undated stock powers executed in blank, (d) to execute and deliver such other agreements, instruments, approvals or other documents as may be requested by the Purchaser in order to create, perfect, establish, and maintain the first priority of any Lien in favor of the Purchaser or to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Investment Documents to which Subsidiary Guarantors are parties, and (e) to deliver opinions of counsel to the Company for United States federal income tax purposes, within 60 days after or such Subsidiary as to such matters as the election is madePurchaser may request. In addition, the Company shall notify grant to the Agents Purchaser a valid first priority perfected Lien in and to all of the Equity Interests of any such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to secure the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also ceaseObligations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Levine Leichtman Capital Partners IV, L.P.)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Effective Date, a Future Pledged Foreign Subsidiary or a U.S. Subsidiary of the Company that is a Restricted Subsidiary, or (in the case of clause (a)(ii) below only) upon the Company or any such Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted that is a Restricted Subsidiary and a U.S. Subsidiary or a Future Pledged Foreign Subsidiary, the Company shall notify the Agents thereof of such acquisition, and:
(ia) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless each such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, a supplement to the Subsidiary Guaranty and a supplement to the Subsidiary Pledge and Security Agreement (or a supplement thereto) (and, if such U.S. Subsidiary owns any real property, to the extent required by clause (b) of Section 7.1.8, a Mortgage), together with Uniform Commercial Code UCC financing statements (Form form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code UCC and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Pledge and Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles); and
(iib) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (as supplemented, if necessary, by a Foreign Pledge Agreement or a other supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company or any U.S. Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Restricted Subsidiary), as the case may be, along with undated stock powers of transfer for such certificates, executed in blank, or, if any securities Capital Stock of a U.S. Subsidiary subject thereto are is comprised of uncertificated securitiessecurities or is held through a securities intermediary, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code UCC applicable to the perfection of such securities) over such securitiesCapital Stock, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such a Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require; provided, however, that notwithstanding the foregoing, (A) subject to clause (C), no Non-U.S. Foreign Subsidiary shall be required to execute and and
deliver a Mortgage or a supplement to the Subsidiary Guaranty or the Subsidiary Pledge and Security Agreement Agreement, (or a supplement thereto), nor will B) neither the Company or nor any U.S. Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Foreign Subsidiary, and (C) any Foreign Subsidiary entitled organized in Canada shall only be required to vote.
(b) Upon any Person (other than do the Trademark Subsidiary foregoing solely to secure or any Unrestricted Subsidiary) becoming, after guaranty the Closing Date, a U.S. Subsidiary Obligations of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably requireCanadian Borrower.
(c) If the election is made to treat any Restricted Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also cease.
Appears in 1 contract
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Date, a U.S. Subsidiary of Holdco that is a Restricted Subsidiary or, in the Company event there is a change in United States federal and any similar applicable state income tax laws such that a guarantee, grant of a security interest or pledge by a Non-U.S. Subsidiary of Holdco that is a Restricted Subsidiary would not result in a deemed dividend or other adverse income tax consequences to Holdco or the Company, a Non-U.S. Subsidiary of Holdco that is a Restricted Subsidiary, or (in the case of clause CLAUSE (a)(iib) below only) upon the Company Holdco or any such Subsidiary of the Company acquiring additional Capital Stock of any existing Subsidiary other than an Unrestricted that is a Restricted Subsidiary, the Company shall notify the Agents thereof and:of such acquisition or change, and shall (but in the case of any such Non-U.S. Subsidiary only to the extent reasonably requested by the Agents)
(ia) the Company shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, a supplement to the Subsidiary Guaranty and a supplement to the Security Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause CLAUSE (b) of Section SECTION 7.1.8, a Mortgage), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehiclesvehicles or inventory and equipment located at document service centers maintained by Holdco or any of its Restricted Subsidiaries at sites owned or leased by clients of Holdco or any such Restricted Subsidiary); and
(iib) the Company shall promptly deliver, or cause to be delivered, to the Administrative Agent under a Pledge Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company Holdco or any Restricted Subsidiary of the Company that is a U.S. Subsidiary or, in the event there is a change in United States federal and any similar applicable state income tax laws such that a pledge by a Non-U.S. Subsidiary that is a Restricted Subsidiary would not result in a deemed dividend or other adverse income tax consequences to Holdco or the Company, any Restricted Subsidiary that is a Subsidiary Guarantor (other than any Unrestricted Non-U.S. Subsidiary), as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securities, the Administrative Agent shall have obtained "control" (as defined in the Uniform Commercial Code applicable to the perfection of such securities) over such securities, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such Pledge Agreement; together, in each case, with such opinions, in form and substance and from counsel reasonably satisfactory to the Agents, as the Agents may reasonably require; providedPROVIDED, howeverHOWEVER, that notwithstanding the foregoing, no Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage or Mortgage, a supplement to the Subsidiary Guaranty, a supplement to the Security Agreement (or a supplement thereto)to a Pledge Agreement, nor will the Company Holdco or any Restricted Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote.
vote unless (bi) Upon any Person (other than the Trademark Subsidiary or any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such event, and the Company shall promptly cause such Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary that there is a Non-U.S. Subsidiary, whether existing on the date of this Agreement or acquired or created hereafter, as a partnership or a branch of the Company for change in United States federal and any similar state income tax purposes, within 60 days after the election is made, laws such that no deemed dividend or other adverse income tax consequences to Holdco or the Company shall notify would result therefrom and (ii) the Agents of such event, and shall have reasonably requested the Company shall promptly cause such Restricted Subsidiary to execute and deliver to the Administrative Agent, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require. Notwithstanding the foregoing, if any such Restricted Subsidiary shall cease to be treated as a partnership or branch of the Company, then, as of the date of such status termination, such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also ceasesame.
Appears in 1 contract
Samples: Credit Agreement (Merrill Corp)
Future Subsidiaries. The Company hereby covenants and agrees as follows:
(a) Upon any Person becoming, after the Closing Date, a direct Subsidiary of the Company any Borrower or any Subsidiary Guarantor, or (in the case of clause CLAUSE (a)(iib) below only) upon the Company any Borrower or any Subsidiary of the Company Guarantor acquiring additional Capital Stock of any existing direct Subsidiary other than an Unrestricted Subsidiaryof such Borrower or Subsidiary Guarantor, the Company VHC shall notify the Agents thereof of such acquisition, and:
(ia) the Company if such new Subsidiary is a U.S. Subsidiary, VHC shall promptly cause any such Subsidiary that is a U.S. Subsidiary (unless such U.S. Subsidiary is an Unrestricted Subsidiary or the Trademark Subsidiary) to execute and deliver to the Administrative Agent, with counterparts for each Lender, a supplement to the Subsidiary Guaranty or, in the case of a wholly-owned U.S. Subsidiary a Joinder Agreement pursuant to SECTION 11.15 hereof, together in each case with a supplement to the Pledge and Security Agreement (or a supplement thereto) (and, if such Subsidiary owns any real property, to the extent required by clause CLAUSE (b) of Section 7.1.8, SECTION 7.1.9 a MortgageMortgage with respect to all such real property), together with Uniform Commercial Code financing statements (Form UCC-1) executed and delivered by such U.S. Subsidiary naming such U.S. the Subsidiary as the debtor and the Administrative Agent as the secured party, or other similar instruments or documents, in appropriate form for filing under the Uniform Commercial Code and any other applicable recording statutes, in the case of real property, of all jurisdictions as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the security interest of the Administrative Agent pursuant to the Subsidiary Pledge and Security Agreement or a Mortgage, as the case may be (other than the perfection of security interests in motor vehicles, leasehold interests in real property (except to the extent required by SECTION 7.1.9) and non-U.S. intellectual property); and
(iib) the Company such Borrower or Subsidiary Guarantor shall promptly deliver, or cause to be delivered, to the Administrative Agent under a the Pledge and Security Agreement (or a supplement thereto) certificates (if any) representing all of the issued and outstanding shares of Capital Stock of such Subsidiary (other than any Unrestricted Subsidiary) owned by the Company such Borrower or any such Subsidiary of the Company that is a U.S. Subsidiary or a Subsidiary Guarantor (other than any Unrestricted Subsidiary)Guarantor, as the case may be, along with undated stock powers for such certificates, executed in blank, or, if any securities subject thereto are uncertificated securitiessecurities or are held through a securities intermediary, confirmation and evidence satisfactory to the Administrative Agent shall Agents that appropriate book entries have obtained "control" (as defined been made in the Uniform Commercial Code applicable to relevant books or records of a securities intermediary or the perfection issuer of such securities) over such securities, as the case may be, or other appropriate steps shall have been taken under applicable law resulting in the perfection of the security interest granted in such securities in favor of the Administrative Agent pursuant to the terms of such the Pledge and Security Agreement; together, in each case, with such opinions, in form and substance and from counsel satisfactory to the Agents, as the Agents may reasonably require; provided, however, PROVIDED that notwithstanding not more than 65% of the foregoing, no Voting Securities of any Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage or a Subsidiary Security Agreement (or a supplement thereto), nor will the Company or any Subsidiary of the Company be required to deliver in pledge pursuant to a Pledge Agreement in excess of 65% of the total combined voting power of all classes of Capital Stock of a pledged unless such Non-U.S. Subsidiary entitled is treated for U.S. federal income tax purposes as a branch of a Borrower or is a partnership in which the partners are Borrowers. SECTION 7.1.9. FUTURE LEASED PROPERTY AND FUTURE ACQUISITIONS OF REAL PROPERTY: FUTURE ACQUISITION OF OTHER PROPERTY. (a) Prior to vote.
(b) Upon entering into any Person (other than the Trademark Subsidiary new lease of real property or renewing any Unrestricted Subsidiary) becoming, after existing lease of real property following the Closing Date, a U.S. Subsidiary of the Company, the Company shall notify the Agents of such eventeach Borrower shall, and shall cause each of its U.S. Subsidiaries to, use its (and their) best efforts (which shall not require the Company shall promptly cause such Subsidiary expenditure of cash or the making of any material concessions under the relevant lease) to execute and deliver to the Administrative Agent, with counterparts for each Lender, Agent a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to waiver executed by the Agents, as the Agents may reasonably require.
(c) If the election is made to treat lessor of any Restricted Subsidiary real property that is to be leased by such Borrower or such U.S. Subsidiary for a Non-U.S. Subsidiary, whether existing on the date term in excess of this Agreement one year in any state whose statutes grant such lessor a "landlord's" (or acquired or created hereafter, as a partnership or a branch of the Company for United States federal income tax purposes, within 60 days after the election similar) Lien which is made, the Company shall notify the Agents of such event, and the Company shall promptly cause such Restricted Subsidiary to execute and deliver superior to the Administrative Agent's, with counterparts for each Lender, a Subsidiary Guaranty, together with such opinions, in form and substance and from counsel satisfactory to the Agents, as extent the Agents may reasonably require. Notwithstanding the foregoing, if value of any such Restricted Subsidiary shall cease personal property of any Borrower or any of its U.S. Subsidiaries to be treated as a partnership held at such leased property exceeds (or branch of it is anticipated that the Company, then, as of the date value of such status terminationpersonal property will, at any point in time during the term of such Restricted Subsidiary's status as a Subsidiary Guarantor hereunder shall also ceaseleasehold term, exceed) $5,000,000.
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