New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC. (b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
New Subsidiaries. (a) Within thirty (30) Business Days At the time of the formation of any Restricted Subsidiary, Subsidiary of any Credit Party or acquisition of a Restricted SubsidiarySubsidiary of any Credit Party pursuant to Section 6.1(a), the designation Credit Parties, or any of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiarythem, Borrowers as appropriate, shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (ia) cause each such new Restricted United States domestic Subsidiary that is not an Excluded to join this Agreement by providing to Agent a joinder agreement in the form of Exhibit 5.13 hereto (a “Credit Agreement Joinder Agreement”), (b) cause each such new United States domestic Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be supplement to the Guaranty, a “Borrower” hereunder) and (B) supplement to the Security Agreement, a supplemental Guaranty in supplement to the form attached hereto as Exhibit 1.1(a)Pledge Agreement, and to deliver to Agent such other security documents related (including, without limitation, any mortgage, deed to personaltysecure debt or deed of trust where such Subsidiary owns real property) requested by Agent in its discretion, together with appropriate UCC-1 financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to AgentAgent and subject to Permitted Encumbrances, (iic) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Pledge Agreement or the Canadian Security Agreementsuch other Pledge Agreements, as applicablein each case, providing for the pledge (subject to Permitted Encumbrances) of the Capital Stock direct and beneficial interests in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary the pledge of a Credit Party organized under the laws direct Foreign Subsidiary, 65% of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) all of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%Subsidiary) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent Agent, together with appropriate certificates and powers or financing statements under the Uniform Commercial Code or the PPSA, as applicable, or other applicable personal property or moveable movable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent; provided, that no such pledge shall be required with respect to the Stock of a new Foreign Subsidiary of a Credit Party unless and until such Subsidiary has assets with a value of $1,000,000 or more, and (iiid) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such formation and the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the a Credit Agreement Joinder Agreement by each such new Restricted United States domestic Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the any Credit Agreement Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein Any document, agreement or in any other Loan Document instrument executed or issued pursuant to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower this Section 5.13 shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, a “thin capitalizationLoan Document” rules or similar principles, (B) is not within the legal capacity for purposes of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentsthis Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Blount International Inc), Credit Agreement (Blount International Inc)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and As soon as practicable but in any event within 30 days Business Days (or such longer period as the Administrative Agent may shall agree, in its discretion) following the acquisition or creation of any Domestic Subsidiary, cause to be delivered to the Administrative Agent each of the following, as applicable:
(a) a joinder agreement acceptable to the Administrative Agent duly executed by such Subsidiary sufficient to cause such Domestic Subsidiary to become a Borrower (or, at Administrative Agent’s discretion, a Guarantor), together with executed counterparts of each other Loan Document reasonably requested by the Administrative Agent, including all Security Instruments and other documents reasonably requested to establish and preserve the Lien of the Administrative Agent in all Collateral of such Domestic Subsidiary;
(i) cause each Uniform Commercial Code financing statements naming such new Restricted Subsidiary that Person as “Debtor” and naming the Administrative Agent for the benefit of the Secured Parties as “Secured Party,” in form, substance and number sufficient in the reasonable opinion of the Administrative Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is not an Excluded Subsidiary necessary to deliver perfect in favor of the Administrative Agent for the benefit of the Secured Parties the Lien on the Collateral conferred under such Security Instrument to Agent the extent such Lien may be perfected by Uniform Commercial Code filing, and (Aii) a Joinder Agreement pledge agreements, control agreements, Documents and original collateral (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunderincluding pledged Equity Interests, Securities and Instruments) and (B) a supplemental Guaranty in such other documents and agreements as may be reasonably required by the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Administrative Agent, all as necessary to establish and maintain a valid, perfected security interest in form and substance reasonably satisfactory to all Collateral in which such Domestic Subsidiary has an interest consistent with the terms of the Loan Documents;
(c) upon the request of the Administrative Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement an opinion of counsel to the U.S. Security Agreement or the Canadian Security AgreementLoan Parties and their Subsidiaries (including, as applicablewithout limitation, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereofDomestic Subsidiary) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Administrative Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeLenders, in form and substance reasonably satisfactory acceptable to the Administrative Agent, each of which opinions may be in form and (iii) provide or cause substance, including assumptions and qualifications contained therein, substantially similar to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more those opinions of counsel reasonably satisfactory delivered pursuant to AgentSection 5.01(a);
(d) current copies of the Organization Documents of each such Domestic Subsidiary, which in its opinion is together with minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, or appropriate committees thereof (and, if required by such Organization Documents or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and customary with respect to such the execution and delivery of documents described in this Section 7.12, all certified by the applicable documentation referred Governmental Authority or appropriate officer, as applicable; and
(e) with respect to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted any Domestic Subsidiary shall to become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party Guarantor hereunder, within three (3) Business Days prior to becoming a Borrower or of any Guarantor, all “United States personknow-your-customer” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits customer due diligence documentation satisfactory to the Lenders of to the extent such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined information is requested by Parent Borrower and the Administrative Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect the Lenders reasonably promptly after written notice to the Collateral owned by a Credit Party pursuant to the terms Administrative Agent of the Collateral Documentsproposed joinder of a Borrower or Guarantor.
Appears in 2 contracts
Samples: Credit Agreement (Lifecore Biomedical, Inc. \De\), Credit Agreement (Lifecore Biomedical, Inc. \De\)
New Subsidiaries. (a) Within thirty ten (3010) Business Days of the formation of any Restricted SubsidiarySubsidiary of any Credit Party, acquisition of a Restricted Subsidiary, the designation Subsidiary of a Designated Guarantor any Credit Party or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers Credit Parties, or any of them, as appropriate, shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not a Domestic Subsidiary (other than an Excluded Domestic Subsidiary) to join this Agreement as a Credit Party by providing to Agent a joinder agreement, in form and substance reasonably satisfactory to Agent, (ii) cause each such new Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Domestic Subsidiary) to deliver to Agent a Guaranty, a supplement to the Security Agreement, a supplement to the Pledge Agreement, and such other security documents (A) a Joinder Agreement including, without limitation, any mortgage, deed to secure debt or deed of trust where such Restricted Subsidiary owns real property and an appraisal (which Joinder Agreement will specify whether such new Credit Party will shall be a “Borrower” hereundercompliant with FIRREA to the extent required by applicable law as determined by Agent) and (BFlood Insurance with respect to any Mortgaged Property as required by Section 6.9, as applicable) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personaltyreasonably requested by Agent, together with appropriate UCC-1 financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (iiiii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Pledge Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock direct and beneficial interests in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary the pledge of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity)direct Foreign Subsidiary, sixty-five percent (65%) of the total combined voting power of all classes of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), ) as shall be requested by Agent Agent, together with appropriate certificates and powers or financing statements under the Code (or the PPSA, as applicable, any similar document required under personal property security laws of Mexico) or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iiiiv) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement joinder agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement joinder agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance Any document, agreement or instrument executed or issued pursuant to this Section 6.15 shall be a “Loan Document” for purposes of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis Agreement.
(b) Notwithstanding anything to the contrary contained herein, neither no Borrower nor any Subsidiary of any Borrower shall be required to to:
(i) execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) would result in material adverse tax consequences; provided, however, that utilization of the net operating losses of the Credit Parties shall be excluded from Borrower Representative’s determination of whether any such joinder, pledge, mortgage or other grant of security interest would result in material adverse tax consequences to the Credit Parties, (C) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, officer or (CD) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security security; or
(ii) pledge as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party any assets excluded therefrom pursuant to the terms relevant Collateral Documents (including, for the avoidance of doubt, more than 65% of the Collateral Documentstotal combined voting power of all classes of the issued and outstanding Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by any Borrower or any of the Credit Parties which is a Domestic Subsidiary.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (Visteon Corp), Revolving Loan Credit Agreement (Visteon Corp)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor Subsidiary or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
New Subsidiaries. Simultaneously with the acquisition or creation of any Subsidiary, cause to be delivered to the Agent each of the following:
(a) Within thirty (30) Business Days of if the formation of any Restricted Subsidiary is a Domestic Subsidiary, acquisition a Facility Guaranty executed by such Subsidiary substantially in the form of EXHIBIT I;
(b) if the Subsidiary is a Restricted Domestic Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause a Security Agreement of such Subsidiary substantially in the form of EXHIBIT K, together with such Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such Subsidiary as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on Collateral conferred under such Security Instrument to the extent such Lien may be perfected by Uniform Commercial Code filing;
(c) if the Subsidiary is a Domestic Subsidiary and owns any Intellectual Property, (i) an Intellectual Property Security Agreement of such Subsidiary substantially in the form of EXHIBIT N and (ii) an Intellectual Property Assignment of such Subsidiary substantially in the form of EXHIBIT O, in each such new Restricted Subsidiary that is not an Excluded Subsidiary case, together with (in addition to deliver the Uniform Commercial Code filings referred to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunderin SECTIONS 9.18(b) and (Bf)) such financing statements and other filings with the Patent and Trademark Office or such other office or offices of any Governmental Authority as the Agent deems necessary, executed by such Subsidiary as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all required filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on Collateral conferred under such Intellectual Property Security Instrument to the extent such Lien may be perfected by filing;
(d) if the Subsidiary is either a supplemental Guaranty Domestic Subsidiary or a Direct Foreign Subsidiary, and if the Subsidiary Securities issued by such Subsidiary that are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not then executed and delivered to the Agent a Pledge Agreement granting a Lien to the Agent, for the benefit of the Agent and the Lenders, in such equity interests, a Pledge Agreement executed by the Subsidiary that directly owns such Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(a)EXHIBIT L or such other form of instrument specific to the foreign jurisdiction of such Direct Foreign Subsidiary as the Agent, in its sole discretion, may require, and if such Subsidiary Securities shall be owned by the Borrower or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities;
(e) if the Subsidiary is a Domestic Subsidiary or a Direct Foreign Subsidiary and the Pledged Interests issued by such Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing 100% of such Subsidiary Securities that are Pledged Interests and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto;
(f) with respect to the pledges required by Sections 9.18(d) and (e) (i) Uniform Commercial Code financing statements on form UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on such security documents related Subsidiary Securities and (ii) if the Pledged Interests issued by such Subsidiary do not constitute securities and such Subsidiary has not elected to personaltyhave such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, together with appropriate financing statementsa control agreement from the Registrar of such Subsidiary, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the Lien in favor of the Agent conferred under the Pledge Agreement and that such Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the Agent, in each instance, until it receives notice from the Agent that all Liens on such Collateral in favor of the Agent for the benefit of the Agent and the Lenders have been released or terminated, and (ii4) agrees that upon receipt of notice from the Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to a transferee identified in such notice, it will duly record such transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor;
(g) if the Subsidiary is a Domestic Subsidiary and owns or leases any real property that is Mortgaged Property, a Mortgage with respect to each such Mortgaged Property, along with the appropriate Real Property Support Documents required in connection with each such Mortgage;
(h) with respect to all new Restricted Subsidiaries that are directly owned of the foregoing in whole or in part by a U.S. Credit Party or a Canadian Credit PartySECTIONS 9.18(a) through (g), cause such Credit Party to provide to Agent a supplement to the U.S. appropriate schedules attached to the appropriate Security Agreement Instruments listing the additional Collateral, certified as true, correct and complete by the Authorized Representative (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Instruments in after acquired Collateral);
(i) with respect to the foregoing, an opinion or opinions of counsel to the Canadian Security Agreement, Subsidiary dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Loan Documents provided for in each case this SECTION 9.18 and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeLenders, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, acceptable to the extent requested by Agent, one or more Agent of similar effect to the opinions of counsel reasonably satisfactory delivered pursuant to AgentSECTION 7.1(a)(ii); and
(j) current copies of the Organizational Documents and Operating Documents of such Subsidiary, which in its opinion is minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, managing members or appropriate committees thereof (and, if required by such Organizational Documents, Operating Documents or applicable law, of the shareholders, members or partners) of such Subsidiary authorizing the actions and customary with respect to such the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain documents described in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis SECTION 9.18.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and As soon as practicable but in any event within 30 days Business Days (or such longer period as Agent may agreebe agreed by the Administrative Agent) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in following the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole acquisition or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge creation of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign any Domestic Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entityan Excluded Domestic Subsidiary), sixty-five percent (65%) or the time any existing Domestic Subsidiary ceases to be an Excluded Domestic Subsidiary, cause to be delivered to the Administrative Agent each of the total combined voting power of all classes following, as applicable:
(a) a joinder agreement acceptable to the Administrative Agent duly executed by such Domestic Subsidiary sufficient to cause such Subsidiary to become a Guarantor (or, with the consent of the voting Capital Stock Administrative Agent if such Subsidiary is to own any assets of the type included in the Borrowing Base, a Borrower hereunder), together with executed counterparts of each other Loan Document reasonably requested by the Administrative Agent, including all Security Instruments and other documents reasonably requested to establish and preserve the Lien of the Administrative Agent in all Collateral of such Foreign Subsidiary Domestic Subsidiary;
(i) Uniform Commercial Code financing statements naming such Person as “Debtor” and one-hundred percent (100%) naming the Administrative Agent for the benefit of the non-voting Capital Stock Secured Parties as “Secured Party,” in form, substance and number sufficient in the reasonable opinion of the Administrative Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary to perfect in favor of the Administrative Agent for the benefit of the Secured Parties the Lien on the Collateral conferred under such Foreign SubsidiarySecurity Instrument to the extent such Lien may be perfected by Uniform Commercial Code filing, and (ii) pledge agreements, control agreements, Documents and original collateral (including pledged Equity Interests (other than Excluded Equity Interests), Securities and Instruments) and such other documents and agreements as may be reasonably required by the Administrative Agent, all as necessary to establish and maintain a valid, perfected security interest in all Collateral in which such Domestic Subsidiary has an interest consistent with the terms of the Loan Documents, in each case case, subject to the extent that Intercreditor Agreement;
(c) upon the request of the Administrative Agent, an opinion of counsel to each such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Domestic Subsidiary and addressed to the Administrative Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeLenders, in form and substance reasonably satisfactory acceptable to the Administrative Agent, each of which opinions may be in form and (iii) provide or cause substance, including assumptions and qualifications contained therein, substantially similar to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more those opinions of counsel reasonably satisfactory delivered pursuant to AgentSection 5.01(a);
(d) current copies of the Organization Documents of each such Domestic Subsidiary, which in its opinion is together with minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, or appropriate committees thereof (and, if required by such Organization Documents or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and customary with respect to such the execution and delivery of documents described in this Section 7.12, all certified by the applicable documentation referred Governmental Authority or appropriate officer as the Administrative Agent may elect; and
(e) with respect to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted any Subsidiary shall to become a Credit Party hereunder with the same force Borrower hereunder, within three (3) Business Days prior to becoming a Borrower, all “know-your-customer” and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits customer due diligence documentation satisfactory to the Lenders of to the extent such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined information is requested by Parent Borrower and the Administrative Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect the Lenders reasonably promptly after written notice to the Collateral owned by a Credit Party pursuant to the terms Administrative Agent of the Collateral Documentsproposed joinder of a Borrower.
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New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and As soon as practicable but in any event within 30 days following the acquisition or such longer period as creation of any Subsidiary (other than an Excluded Subsidiary) cause to be delivered to the Administrative Agent may agree) each of the following:
(i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement duly executed by such Subsidiary (with all schedules thereto appropriately completed), which Joinder Agreement will, if such Subsidiary will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty engage in the form attached hereto business of selling or leasing new motor vehicles, designate such Subsidiary as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, a Designated Borrower;
(ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause Uniform Commercial Code financing statements naming such Credit Party to provide to Subsidiary as "Debtor" and naming the Administrative Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge benefit of the Capital Stock Secured Parties as "Secured Party," in such new Restricted Subsidiary owned by it (orform, substance and number sufficient in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) reasonable opinion of the total combined voting power of Administrative Agent and its counsel to be filed in all classes Uniform Commercial Code filing offices in which filing is necessary or advisable to perfect in favor of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) Administrative Agent for the benefit of the non-voting Capital Stock of Secured Parties the Liens on the Collateral conferred under such Foreign Subsidiary, in each case Joinder Agreement to the extent that such Capital Stock does not constitute Excluded Property Lien may be perfected by Uniform Commercial Code filings;
(iii) unless the Required Lenders expressly waive such requirement in accordance with Section 10.01, an opinion or Excluded Principal Property), opinions ------------- of counsel to such Subsidiary dated as shall be requested by Agent together with appropriate certificates of the date of delivery of such Joinder Agreements (and powers or financing statements under other Loan Documents) provided for in this Section 6.12 and addressed to the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeAdministrative Agent, in form and ------------ substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, acceptable to the extent requested Administrative Agent; and
(iv) current copies of the Organization Documents of such Subsidiary, minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, or appropriate committees (and, if required by Agentsuch Organization Documents or applicable law, one of the shareholders, members or more opinions partners) of counsel reasonably satisfactory to Agent, which in its opinion is appropriate such Subsidiary authorizing the actions and customary with respect to such the execution and delivery of documents described in this Section 6.12, all certified by ------------ the applicable documentation referred to above. Upon execution and delivery of Governmental Authority or appropriate officer as the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCAdministrative Agent may elect.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (Carmax Inc)
New Subsidiaries. Within seven (7) days of the acquisition or creation of any Material Subsidiary, cause to be delivered to the Collateral Agent for the benefit of the Secured Parties each of the following:
(a) Within thirty a Facility Guaranty executed by such Material Subsidiary, if a Domestic Subsidiary, substantially in the form of Exhibit G;
(30b) Business Days each applicable Security Instrument of such Material Subsidiary, if a Domestic Subsidiary, to the extent such Material Subsidiary owns collateral of the formation type covered by such Security Instrument, substantially in the form of any Restricted SubsidiaryExhibit K, acquisition of a Restricted SubsidiaryL and M, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) together with (i) cause each such new Restricted Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such Material Subsidiary as "Debtor" and naming the Collateral Agent for the benefit of the Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Collateral Agent and its special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Collateral Agent for the benefit of the Secured Parties the Lien on Collateral granted under such Security Instrument to the extent such Lien may be perfected by Uniform Commercial Code filing, and (ii) landlord waivers, bailee waivers, processor waivers, warehouseman waivers, title insurance, surveys, appraisals, environmental assessments and other documents, certificates and agreements as the Collateral Agent may reasonably request in order to establish and maintain its Lien on any real property of such Material Subsidiary covered thereby;
(c) if the Subsidiary Securities issued by such Material Subsidiary that is are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not an Excluded then executed and delivered to the Collateral Agent a Pledge Agreement granting a Lien to the Collateral Agent, for the benefit of the Lender and the other Secured Parties, in such equity interests, a Pledge Agreement executed by the Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether that directly owns such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Material Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it K (or, in as to the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or Pledged Interests issued by any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Direct Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in a form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect acceptable to the Collateral Agent), and if such Subsidiary Securities shall be owned by the Borrower or a Credit Party pursuant Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to such Subsidiary Securities;
(d) if the terms Pledged Interests issued by such Material Subsidiary constitute securities under Article 8 of the Collateral Documents.Uniform Commercial Code (i) the certificates representing 100% of such
Appears in 1 contract
New Subsidiaries. (a) Within thirty (30) Business Days At the time of the formation of any Restricted Subsidiary, acquisition Subsidiary of a Restricted Subsidiary, the designation of a Designated Guarantor any Credit Party or at any time a Subsidiary becomes a Restricted Subsidiaryof any Credit Party pursuant to Section 6.1(a), Borrowers Credit Parties, or any of them, as appropriate, shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (ia) cause each such new Restricted United States domestic Subsidiary that is not an Excluded and each such new Canadian Subsidiary to join this Agreement by providing to Agent a joinder agreement in the form of Exhibit 5.13 hereto (a "Credit Agreement Joinder Agreement"), (b) cause each such new United States domestic Subsidiary to deliver to Agent (A) a Joinder supplement to the US Guaranty, a supplement to the US Security Agreement, a supplement to the Shared Pledge Agreement, a supplement to the Collateral Agency Agreement (which Joinder Agreement will specify whether and such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such other security documents related (including, without limitation, any mortgage, deed to personaltysecure debt or deed of trust where such Subsidiary owns real property) requested by Agent in its discretion, together with appropriate UCC-1 financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (iic) cause each such new Canadian Subsidiary to deliver to Agent a Canadian Guaranty substantially in the form of the Canadian Guaranty dated as of the Closing Date, a Canadian Security Agreement substantially in the form of the Canadian Security Agreement dated as of the Closing Date and such other security documents (including, without limitation, any mortgage, debenture or deed of trust where such new Subsidiary owns real property) requested by Agent or Canadian Agent in its discretion, together with appropriate filings of financing statements under the PPSA or other applicable personal property or movable property registries, all in form and substance satisfactory to Agent and Canadian Agent, (d) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian US Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Shared Pledge Agreement or the Canadian Security Agreementsuch other Pledge Agreements, as applicablein each case, providing for the pledge of the Capital Stock direct and beneficial interests in such new Restricted Subsidiary owned by it (or, in the case of the pledge of a direct Foreign Subsidiary (other than a Foreign Subsidiary or Canadian Subsidiary, 65% of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) all of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%Subsidiary) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent Agent, together with appropriate certificates and powers or financing statements under the Uniform Commercial Code or the PPSA, as applicable, PPSA or other applicable personal property or moveable movable property registries or other documents necessary for to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iiie) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such formation and the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the a Credit Agreement Joinder Agreement by each such new Restricted United States domestic Subsidiary or Canadian Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the any Credit Agreement Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein Any document, agreement or in any other Loan Document instrument executed or issued pursuant to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower this Section 5.13 shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity a "Loan Document" for purposes of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentsthis Agreement.
Appears in 1 contract
New Subsidiaries. Simultaneously with (i) the acquisition or creation ---------------- of any Material Subsidiary which is a Domestic Subsidiary, or upon any existing Domestic Subsidiary becoming a Material Subsidiary, cause to be delivered to the Agent each of the following and (ii) the acquisition or creation of any Material Direct Foreign Subsidiary, cause to be delivered to the Agent each of the items set forth in (d), (e), (f), (h) (subclauses (i), (ii), (iii) and (v) only) and (i), below:
(a) Within thirty a Facility Guaranty executed by such Subsidiary substantially in the form of Exhibit I; ---------
(30b) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent General Security Agreement of such event andSubsidiary substantially in the form of Exhibit J-1, promptly thereafter (and a Priority Security agreement substantially ----------- in any event within 30 days the form of Exhibit J-2, together with such Uniform Commercial Code ----------- financing statements on Form UCC-1 or otherwise duly executed by such longer period Subsidiary as Agent may agree) "Debtor" and (i) cause naming the General Collateral Agent for the benefit of the General Secured Parties, as "Secured Party," and (ii) naming the Priority Collateral Agent for the benefit of the Priority Secured Parties as "Secured Party", in each case in form, substance and number sufficient in the reasonable opinion of the Collateral Agents and their special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect (y) the General Lien in favor of the General Collateral Agent for the benefit of the General Secured Parties and (z) the Priority Lien in favor of the Priority Collateral Agent for the benefit of the Priority Secured Parties, in each case to the extent such new Restricted General Lien or Priority Lien may be perfected by Uniform Commercial Code filing;
(c) Priority Mortgages and General Mortgages with respect to all parcels of real property with a fair market value in excess of $300,000 owned by such Subsidiary and with respect to any Material Real Property or to the extent required by any law, regulation or directive of any applicable Governmental Authority, Material Real Property Support Documents, as applicable, and related Uniform Commercial Code financing statements on Form UCC-1 or otherwise pertaining to fixtures;
(d) if the Subsidiary Securities issued by such Subsidiary that is are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not an Excluded then executed and delivered to the General Collateral Agent a Pledge Agreement granting a General Lien to the General Collateral Agent, for the benefit of the General Secured Parties, in such equity interests, a Pledge Agreement executed by the Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether that directly owns such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(aK (or, as to the Pledged Interests issued by --------- any Direct Foreign Subsidiary, in a form acceptable to the Agent), and if such Subsidiary Securities shall be owned by the Borrower or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities;
(e) if the Pledged Interests issued by such Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing such Pledged Interests and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto;
(i) Uniform Commercial Code financing statements on form UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming the General Collateral Agent for the benefit of the General Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the General Collateral Agent for the benefit of the General Secured Parties the General Lien on such security documents related Subsidiary Securities and (ii) if the Pledged Interests issued by such Subsidiary do not constitute securities and such Subsidiary has not elected to personaltyhave such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, together with appropriate financing statementsa control agreement from the Registrar of such Subsidiary, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the General Lien in favor of the General Collateral Agent conferred under the Pledge Agreement and that such General Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the General Collateral Agent, in each instance, until it receives notice from the General Collateral Agent that all General Liens on such Collateral in favor of the General Collateral Agent for the benefit of the General Secured Parties have been released or terminated, and (ii4) with respect agrees that upon receipt of notice from the Agent or the General Collateral Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to all new Restricted Subsidiaries that are directly owned a transferee identified in whole or in part by a U.S. Credit Party or a Canadian Credit Partysuch notice, cause it will duly record such Credit Party to provide to Agent transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor;
(g) a supplement to the U.S. appropriate schedule attached to the appropriate Security Agreement Documents listing the additional Collateral, certified as true, correct and complete by the Authorized Representative (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Documents in after acquired Collateral);
(h) an opinion or opinions of counsel to the Canadian Security Agreement, Subsidiary (including local counsel in each jurisdiction where Mortgaged Property is located) dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Loan Documents provided for in each case this Section 9.20 and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge------------ Collateral Agents, in form and substance reasonably satisfactory acceptable to Agentthe Collateral Agents (which opinion may include assumptions and qualifications of similar effect to those contained in the opinions of counsel delivered pursuant to Section 7.1(a)), to the effect that: --------------
(i) such Subsidiary is duly organized, validly existing and in good standing in the jurisdiction of its formation, has the requisite power and authority to own its properties and conduct its business as then owned and then conducted and proposed to be conducted and to execute, deliver and perform the Facility Guaranty and other Loan Documents described in this Section 9.20 to which such ------------ Subsidiary is a signatory, and is duly qualified to transact business and is in good standing as a foreign corporation or partnership in each other jurisdiction in which the character of the properties owned or leased, or the business carried on by it, requires such qualification and the failure to be so qualified would reasonably be likely to result in a Material Adverse Effect;
(ii) the execution, delivery and performance of the Facility Guaranty and other Loan Documents described in this Section 9.20 to ------------ which such Subsidiary is a signatory have been duly authorized by all requisite corporate or partnership action (including any required shareholder or partner approval), each of such agreements has been duly executed and delivered and constitutes the valid and binding agreement of such Subsidiary, enforceable against such Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors' rights generally and to the effect of general principles of equity (whether considered in a proceeding at law or in equity);
(iii) provide or cause to be provided to Agent all other customary the Subsidiary Securities of such Subsidiary are duly authorized, validly issued, fully paid and reasonable documentation requested therebynonassessable, includingand free of any preemptive rights, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary General Security Instrument (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.including foreign collateral
Appears in 1 contract
Samples: Credit Agreement (Cone Mills Corp)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor Subsidiary or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-one- hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.)
New Subsidiaries. Simultaneously with (i) the acquisition or creation of any Material Subsidiary which is a Domestic Subsidiary, or upon any existing Domestic Subsidiary becoming a Material Subsidiary, cause to be delivered to the Agent each of the following and (ii) the acquisition or creation of any Material Direct Foreign Subsidiary, cause to be delivered to the Agent each of the items set forth in (d), (e), (f), (h) (subclauses (i), (ii), (iii) and (v) only) and (i), below:
(a) Within thirty a Facility Guaranty executed by such Subsidiary substantially in the form of Exhibit I;
(30b) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent General Security Agreement of such event andSubsidiary substantially in the form of Exhibit J-1, promptly thereafter (and a Priority Security agreement substantially in any event within 30 days the form of Exhibit J-2, together with such Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such longer period Subsidiary as Agent may agree) "Debtor" and (i) cause naming the General Collateral Agent for the benefit of the General Secured Parties, as "Secured Party," and (ii) naming the Priority Collateral Agent for the benefit of the Priority Secured Parties as "Secured Party", in each case in form, substance and number sufficient in the reasonable opinion of the Collateral Agents and their special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect (y) the General Lien in favor of the General Collateral Agent for the benefit of the General Secured Parties and (z) the Priority Lien in favor of the Priority Collateral Agent for the benefit of the Priority Secured Parties, in each case to the extent such new Restricted General Lien or Priority Lien may be perfected by Uniform Commercial Code filing;
(c) Priority Mortgages and General Mortgages with respect to all parcels of real property with a fair market value in excess of $300,000 owned by such Subsidiary and with respect to any Material Real Property or to the extent required by any law, regulation or directive of any applicable Governmental Authority, Material Real Property Support Documents, as applicable, and related Uniform Commercial Code financing statements on Form UCC-1 or otherwise pertaining to fixtures;
(d) if the Subsidiary Securities issued by such Subsidiary that is are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not an Excluded then executed and delivered to the General Collateral Agent a Pledge Agreement granting a General Lien to the General Collateral Agent, for the benefit of the General Secured Parties, in such equity interests, a Pledge Agreement executed by the Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether that directly owns such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(aK (or, as to the Pledged Interests issued by any Direct Foreign Subsidiary, in a form acceptable to the Agent), and if such Subsidiary Securities shall be owned by the Borrower or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities;
(e) if the Pledged Interests issued by such Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing such Pledged Interests and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto;
(i) Uniform Commercial Code financing statements on form UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming the General Collateral Agent for the benefit of the General Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the General Collateral Agent for the benefit of the General Secured Parties the General Lien on such security documents related Subsidiary Securities and (ii) if the Pledged Interests issued by such Subsidiary do not constitute securities and such Subsidiary has not elected to personaltyhave such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, together with appropriate financing statementsa control agreement from the Registrar of such Subsidiary, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the General Lien in favor of the General Collateral Agent conferred under the Pledge Agreement and that such General Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the General Collateral Agent, in each instance, until it receives notice from the General Collateral Agent that all General Liens on such Collateral in favor of the General Collateral Agent for the benefit of the General Secured Parties have been released or terminated, and (ii4) with respect agrees that upon receipt of notice from the Agent or the General Collateral Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to all new Restricted Subsidiaries that are directly owned a transferee identified in whole or in part by a U.S. Credit Party or a Canadian Credit Partysuch notice, cause it will duly record such Credit Party to provide to Agent transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor;
(g) a supplement to the U.S. appropriate schedule attached to the appropriate Security Agreement Documents listing the additional Collateral, certified as true, correct and complete by the Authorized Representative (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Documents in after acquired Collateral);
(h) an opinion or opinions of counsel to the Canadian Security Agreement, Subsidiary (including local counsel in each jurisdiction where Mortgaged Property is located) dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Loan Documents provided for in each case this Section 9.20 and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeCollateral Agents, in form and substance reasonably satisfactory acceptable to Agent, the Collateral Agents (which opinion may include assumptions and (iii) provide or cause qualifications of similar effect to be provided those contained in the opinions of counsel delivered pursuant to Agent all other customary and reasonable documentation requested thereby, includingSection 7.1(a)), to the extent requested by Agenteffect that:
(i) such Subsidiary is duly organized, one validly existing and in good standing in the jurisdiction of its formation, has the requisite power and authority to own its properties and conduct its business as then owned and then conducted and proposed to be conducted and to execute, deliver and perform the Facility Guaranty and other Loan Documents described in this Section 9.20 to which such Subsidiary is a signatory, and is duly qualified to transact business and is in good standing as a foreign corporation or more opinions of counsel reasonably satisfactory to Agent, partnership in each other jurisdiction in which in its opinion is appropriate and customary with respect to such execution and delivery the character of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party properties owned or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect ofleased, or otherwise guaranty or grant any Lien the business carried on by it, requires such qualification and the failure to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything be so qualified would reasonably be likely to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.Material Adverse Effect;
Appears in 1 contract
Samples: Credit Agreement (Cone Mills Corp)
New Subsidiaries. Simultaneously with the acquisition or creation of any Subsidiary, cause to be delivered to the Agent each of the following: (a) Within thirty (30) Business Days of if the formation of any Restricted Subsidiary is a Domestic Subsidiary, acquisition a Facility Guaranty executed by such Subsidiary substantially in the form of EXHIBIT I; (b) if the Subsidiary is a Restricted Domestic Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause a Security Agreement of such Subsidiary substantially in the form of EXHIBIT K, together with such Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such Subsidiary as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on Collateral conferred under such Security Instrument to the extent such Lien may be perfected by Uniform Commercial Code filing; (c) if the Subsidiary is a Domestic Subsidiary and owns any Intellectual Property, (i) an Intellectual Property Security Agreement of such Subsidiary substantially in the form of EXHIBIT N and (ii) an Intellectual Property Assignment of such Subsidiary substantially in the form of EXHIBIT O, in each such new Restricted Subsidiary that is not an Excluded Subsidiary case, together with (in addition to deliver the Uniform Commercial Code filings referred to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunderin SECTIONS 9.18(b) and (Bf)) such financing statements and other filings with the Patent and Trademark Office or such other office or offices of any Governmental Authority as the Agent deems necessary, executed by such Subsidiary as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all required filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on Collateral conferred under such Intellectual Property Security Instrument to the extent such Lien may be perfected by filing; (d) if the Subsidiary is either a supplemental Guaranty Domestic Subsidiary or a Direct Foreign Subsidiary, and if the Subsidiary Securities issued by such Subsidiary that are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not then executed and delivered to the Agent a Pledge Agreement granting a Lien to the Agent, for the benefit of the Agent and the Lenders, in such equity interests, a Pledge Agreement executed by the Subsidiary that directly owns such Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(a)EXHIBIT L or such other form of instrument specific to the foreign jurisdiction of such Direct Foreign Subsidiary as the Agent, in its sole discretion, may require, and if such Subsidiary Securities shall be owned by the Borrower or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities; S-80 <PAGE> 88 (e) if the Subsidiary is a Domestic Subsidiary or a Direct Foreign Subsidiary and the Pledged Interests issued by such Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing 100% of such Subsidiary Securities that are Pledged Interests and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto; (f) with respect to the pledges required by Sections 9.18(d) and (e) (i) Uniform Commercial Code financing statements on form UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming the Agent for the benefit of the Agent and the Lenders as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Agent and the Lenders the Lien on such security documents related Subsidiary Securities and (ii) if the Pledged Interests issued by such Subsidiary do not constitute securities and such Subsidiary has not elected to personaltyhave such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, together with appropriate financing statementsa control agreement from the Registrar of such Subsidiary, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the Lien in favor of the Agent conferred under the Pledge Agreement and that such Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the Agent, in each instance, until it receives notice from the Agent that all Liens on such Collateral in favor of the Agent for the benefit of the Agent and the Lenders have been released or terminated, and (ii4) agrees that upon receipt of notice from the Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to a transferee identified in such notice, it will duly record such transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor; (g) if the Subsidiary is a Domestic Subsidiary and owns or leases any real property that is Mortgaged Property, a Mortgage with respect to each such Mortgaged Property, along with the appropriate Real Property Support Documents required in connection with each such Mortgage; (h) with respect to all new Restricted Subsidiaries that are directly owned of the foregoing in whole or in part by a U.S. Credit Party or a Canadian Credit PartySECTIONS 9.18(a) through (g), cause such Credit Party to provide to Agent a supplement to the U.S. appropriate schedules attached to the appropriate Security Agreement Instruments listing the additional Collateral, certified as true, correct and complete by the Authorized Representative (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Instruments in after acquired Collateral); S-81 <PAGE> 89 (i) with respect to the foregoing, an opinion or opinions of counsel to the Canadian Security Agreement, Subsidiary dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Loan Documents provided for in each case this SECTION 9.18 and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeLenders, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, acceptable to the extent requested by Agent, one or more Agent of similar effect to the opinions of counsel reasonably satisfactory delivered pursuant to AgentSECTION 7.1(a)(ii); and (j) current copies of the Organizational Documents and Operating Documents of such Subsidiary, which in its opinion is minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, managing members or appropriate committees thereof (and, if required by such Organizational Documents, Operating Documents or applicable law, of the shareholders, members or partners) of such Subsidiary authorizing the actions and customary with respect to such the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain documents described in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis SECTION 9.18.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement
New Subsidiaries. (a) Within thirty (30) Business Days of Each Borrower shall, at its own expense prior to the acquisition or formation of any direct or indirect Subsidiary of such Borrower after the date hereof:
(i) Notify the Administrative Agent of such event;
(ii) If such Subsidiary is required by the provisions of this Agreement to be designated as a Restricted Subsidiary, acquisition of Subsidiary (or if the Borrowers choose to designate such Subsidiary as a Restricted Subsidiary), cause such Restricted Subsidiary to execute and deliver to the designation Administrative Agent one or more joinder agreements and such other documents as the Administrative Agent deems necessary to include such Subsidiary as a Borrower (or Guarantor, as applicable);
(iii) If such Subsidiary is required by the provisions of this Agreement to be designated as a Designated Guarantor Restricted Subsidiary (or at any time a if the Borrowers choose to designate such Subsidiary becomes as a Restricted Subsidiary), Borrowers shall notify Agent amend the Security Documents as appropriate in light of such event andto pledge the Equity Securities of such Person to the Administrative Agent for the benefit of itself and the Lenders and execute and deliver all documents or instruments required thereunder or appropriate to perfect the security interest created thereby;
(iv) If such Subsidiary is required by the provisions of this Agreement to be designated as a Restricted Subsidiary (or if the Borrowers choose to designate such Subsidiary as a Restricted Subsidiary), promptly thereafter upon obtaining the approval of any necessary Governmental Authority, deliver to the Administrative Agent all stock certificates and other instruments added to the Collateral thereby free and clear of all Liens, accompanied by undated stock powers or other instruments of transfer executed in blank;
(and in any event within 30 days or v) If such longer period Subsidiary is required by the provisions of this Agreement to be designated as Agent may agree) (i) cause each such new a Restricted Subsidiary that is not an Excluded (or if the Borrowers choose to designate such Subsidiary as a Restricted Subsidiary), cause such Subsidiary to deliver to Agent (A) execute a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) pledge and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a)security agreement, and to deliver to Agent such mortgage and/or ship mortgage or other security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all agreement in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) If such Subsidiary is required by the provisions of this Agreement to be designated as a Restricted Subsidiary (or if the Borrowers choose to designate such Subsidiary as a Restricted Subsidiary), cause each document (ii) including each Uniform Commercial Code financing statement and each filing with respect to all new intellectual property owned by each Person that becomes a direct or indirect Restricted Subsidiaries that are directly owned Subsidiary of any Borrower after the date hereof) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in whole or order to create in part by favor of the Administrative Agent for the benefit of itself and the Lenders a U.S. Credit Party or a Canadian Credit Partyvalid, cause such Credit Party to provide to Agent a supplement legal and perfected first-priority security interest in and lien on the Collateral subject to the U.S. Security Agreement Documents to be so filed, registered or recorded and evidence thereof delivered to the Administrative Agent; provided, however, that in the case of any Subsidiary which is the owner of a Casino or the Canadian Security Agreementholder of a Gaming License, as applicable, providing for Argosy shall use its best efforts to cause all necessary Governmental Authorities to consent to the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock Equity Securities of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Administrative Agent together with appropriate certificates for the benefit of itself and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as soon as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentspracticable.
Appears in 1 contract
Samples: Credit Agreement (Argosy Gaming Co)
New Subsidiaries. Within seven (7) days of the acquisition or creation of any Material Subsidiary, cause to be delivered to the Collateral Agent for the benefit of the Secured Parties each of the following:
(a) Within thirty a Facility Guaranty executed by such Material Subsidiary, if a Domestic Subsidiary, substantially in the form of Exhibit G;
(30b) Business Days each applicable Security Instrument of such Material Subsidiary, if a Domestic Subsidiary, to the extent such Material Subsidiary owns collateral of the formation type covered by such Security Instrument, substantially in the form of any Restricted SubsidiaryExhibit K, acquisition of a Restricted SubsidiaryL and M, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) together with (i) cause each such new Restricted Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such Material Subsidiary as "Debtor" and naming the Collateral Agent for the benefit of the Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Collateral Agent and its special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Collateral Agent for the benefit of the Secured Parties the Lien on Collateral granted under such Security Instrument to the extent such Lien may be perfected by Uniform Commercial Code filing, and (ii) landlord waivers, bailee waivers, processor waivers, warehouseman waivers, title insurance, surveys, appraisals, environmental assessments and other customary documents, certificates and agreements as the Collateral Agent may reasonably request in order to establish and maintain its Lien on any property of such Material Subsidiary covered thereby;
(c) if the Subsidiary Securities issued by such Material Subsidiary that is are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not an Excluded then executed and delivered to the Collateral Agent a Pledge Agreement granting a Lien to the Collateral Agent, for the benefit of the Lender and the other Secured Parties, in such equity interests, a Pledge Agreement executed by the Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether that directly owns such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Material Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(aK (or, as to the Pledged Interests issued by any Direct Foreign Subsidiary, in a form acceptable to the Collateral Agent), and if such Subsidiary Securities shall be owned by the Borrower or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities; 51 58
(d) if the Pledged Interests issued by such Material Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing 100% of such Subsidiary Securities and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto;
(e) if the Pledged Interests issued by such Material Subsidiary do not constitute securities and such Material Subsidiary has not elected to have such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, (i) Uniform Commercial Code financing statements on form UCC-1 duly executed by the pledgor as "Debtor" and naming the Collateral Agent for the benefit of the Lender and the other Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Collateral Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Collateral Agent for the benefit of the Secured Parties the Lien on such security documents related to personaltySubsidiary Securities and (B) a control agreement from the Registrar of such Material Subsidiary, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Collateral Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the Lien in favor of the Collateral Agent conferred under the Pledge Agreement and that such Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the Collateral Agent, in each instance, until it receives notice from the Collateral Agent that all Liens on such Collateral in favor of the Collateral Agent for the benefit of the Lender and the other Secured Parties have been released or terminated, and (ii4) with respect agrees that upon receipt of notice from the Collateral Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to all new Restricted Subsidiaries that are directly owned a transferee identified in whole or in part by a U.S. Credit Party or a Canadian Credit Partysuch notice, cause it will duly record such Credit Party to provide to Agent transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor;
(f) a supplement to the U.S. appropriate schedule attached to the appropriate Security Agreement or Instruments listing the Canadian additional Collateral, certified as true, correct and complete by the Authorized Representative (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Agreement, Instruments in after acquired Collateral);
(g) an opinion of counsel to the Material Subsidiary dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Loan Documents provided for in each case this Section 7.23 and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Collateral Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeSecured Parties, in form and substance reasonably satisfactory acceptable to Agentthe Lender and the Collateral Agent (which opinion may include assumptions and qualifications of similar effect to those contained in the opinions of counsel delivered pursuant to Section 7.1(a)), to the effect that:
(i) such Material Subsidiary is duly organized, validly existing and in good standing in the jurisdiction of its formation, has the requisite power and authority to own its properties and conduct its business as then owned and then conducted and proposed to be conducted and to execute, deliver and perform the Facility Guaranty and other Loan Documents described in this Section 7.23 to which such Material Subsidiary is a signatory, and is duly qualified to transact business and is in good standing as a foreign corporation or partnership in each other jurisdiction in which the character of the properties owned or leased, or the business carried on by it, requires such qualification and the failure to be so qualified would reasonably be likely to result in a Material Adverse Effect;
(ii) the execution, delivery and performance of the Facility Guaranty and other Loan Documents described in this Section 7.23 to which such Material Subsidiary is a signatory have been duly authorized by all requisite corporate or partnership action (including any required shareholder or partner approval), each of such agreements has been duly executed and delivered and constitutes the valid and binding agreement of such Material Subsidiary, enforceable against such Material Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors' rights generally and to the effect of general principles of equity (whether considered in a proceeding at law or in equity); and
(iii) provide or cause the Subsidiary Securities of such Material Subsidiary are duly authorized, validly issued, fully paid and nonassessable, and free of any preemptive rights, and the applicable Security Instrument (including foreign collateral documents) is effective to be provided create a valid security interest in favor of the Collateral Agent for the benefit of the Secured Parties in such Subsidiary Securities as constitute Pledged Interests; and
(iv) the Uniform Commercial Code financing statements on Form UCC-1 delivered to the Collateral Agent by the Material Subsidiary in connection with the delivery of the Security Instruments of such Material Subsidiary have been duly executed by the Material Subsidiary and are in form, substance and number sufficient for filing in all other customary and reasonable documentation requested thereby, including, Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary to perfect in favor of the Collateral Agent for the benefit of the Secured Parties the Lien on Collateral conferred under such Security Instruments to the extent requested such Lien may be perfected by AgentUniform Commercial Code filing; and
(v) in the case of Direct Foreign Subsidiaries only, one that under the laws of the applicable foreign jurisdiction, all agreements, notices and other documents that are required to be executed, delivered, filed or more opinions recorded and all other action required to be taken, within or pursuant to the laws of counsel reasonably satisfactory such jurisdiction to Agentperfect the Lien conferred in favor of the Collateral Agent under the applicable Security Instrument as against creditors of and purchasers for value from the holder of the Pledged Interests has been duly executed, which in its opinion is delivered, filed, recorded or taken, as the case may be; and
(h) current copies of the Organizational Documents and Operating Documents of such Material Subsidiary, minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, or appropriate committees thereof (and, if required by such Organizational Documents, Operating Documents or applicable law, of the shareholders, members or partners) of such Material Subsidiary authorizing the actions and customary with respect to such the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain documents described in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis Section 7.23.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
New Subsidiaries. Within 10 days after (a) Within thirty (30) Business Days the date of the formation creation of any Restricted Subsidiarynew Subsidiary of Bxxxxxx Exploration or the Borrower, acquisition of a Restricted Subsidiaryor (b) the purchase by Bxxxxxx Exploration, the designation Borrower, or any of a Designated Guarantor or at its other Subsidiaries of the Equity Interests of any time Person, which purchase results in such Person becoming a Subsidiary becomes a Restricted Subsidiaryof Bxxxxxx Exploration or of the Borrower permitted by this Agreement, Borrowers shall notify Agent of such event andBxxxxxx Exploration or the Borrower, promptly thereafter (and as applicable, shall, in any event within 30 days or such longer period as Agent may agree) each case, cause (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary Person to execute and deliver to the Administrative Agent (Awith sufficient originals for each applicable Lender) a Joinder joinder agreement to this Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Administrative Agent, a Pledge Agreement (ii) with respect to all if such new Restricted Subsidiaries that Subsidiary owns one or more Subsidiaries), one or more Mortgages (if such new Subsidiary owns Oil and Gas Properties and if such Mortgages are directly owned in whole otherwise required under Section 5.11), and such other Security Instruments as the Administrative Agent or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement any Lender may reasonably request (to the U.S. extent that such other Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized Interests are required to be delivered under the laws terms of Canada (or any province or territory thereof) that is not a Specified Entitythis Agreement), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to secure the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent Obligations together with appropriate certificates evidence of corporate authority to enter into and powers or financing statements under such legal opinions in relation to such joinder agreement, Pledge Agreement, Mortgages, and other Security Instruments as the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance Administrative Agent may reasonably satisfactory to Agentrequest, and (iiiii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions stockholder of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document Pledge Agreement pledging its interests in respect of, or otherwise guaranty or grant any Lien the Equity Interests of such new Subsidiary to secure, any Obligation secure the Obligations and such evidence of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything corporate authority to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute enter into and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome opinions in relation to such Pledge Agreement as the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as Administrative Agent may reasonably determined by Parent Borrower request, along with share certificates, if any, pledged thereby and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentsappropriately executed stock powers in blank.
Appears in 1 contract
New Subsidiaries. Simultaneously with (1) the acquisition or creation of any Material Subsidiary which is a Domestic Subsidiary, or upon any existing Domestic Subsidiary becoming a Material Subsidiary, cause to be delivered to the Agent each of the following and (2) the acquisition or creation of any Material Direct Foreign Subsidiary, cause to be delivered to the Agent each of the items set forth in (d), (e), (f), (h) (subclauses (i), (ii), (iii) and (v) only) and (i), below:
(a) Within thirty a Facility Guaranty executed by such Subsidiary substantially in the form of Exhibit F;
(30b) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent General Security Agreement of such event andSubsidiary substantially in the form of Exhibit G, promptly thereafter (and a Priority Security agreement substantially in any event within 30 days the form of Exhibit H, together with such Uniform Commercial Code financing statements on Form UCC-1 or otherwise duly executed by such longer period Subsidiary as Agent may agree) "Debtor" and (i) cause naming the General Collateral Agent for the benefit of the General Secured Parties, as "Secured Party," and (ii) naming the Priority Collateral Agent for the benefit of the Priority Secured Parties as "Secured Party", in each case in form, substance and number sufficient in the reasonable opinion of the Collateral Agents and their special counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect (y) the General Lien in favor of the General Collateral Agent for the benefit of the General Secured Parties and (z) the Priority Lien in favor of the Priority Collateral Agent for the benefit of the Priority Secured Parties, in each case to the extent such new Restricted General Lien or Priority Lien may be perfected by Uniform Commercial Code filing;
(c) Priority Mortgages and General Mortgages with respect to all parcels of real property with a fair market value in excess of $300,000 owned by such Subsidiary and with respect to any Material Real Property or to the extent 3 required by any law, regulation or directive of any applicable Governmental Authority, Material Real Property Support Documents, as applicable, and related Uniform Commercial Code financing statements on Form UCC-1 or otherwise pertaining to fixtures;
(d) if the Subsidiary Securities issued by such Subsidiary that is are, or are required to become, Pledged Interests, shall be owned by a Subsidiary who has not an Excluded then executed and delivered to the General Collateral Agent a Pledge Agreement granting a General Lien to the General Collateral Agent, for the benefit of the General Secured Parties, in such equity interests, a Pledge Agreement executed by the Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether that directly owns such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Subsidiary Securities substantially in the form attached hereto as Exhibit 1.1(aI (or, as to the Pledged Interests issued by any Direct Foreign Subsidiary, in a form acceptable to the Agent), and if such Subsidiary Securities shall be owned by the Company or a Subsidiary who has previously executed a Pledge Agreement, a Pledge Agreement Supplement in the form required by such Pledge Agreement pertaining to deliver such Subsidiary Securities;
(e) if the Pledged Interests issued by such Subsidiary constitute securities under Article 8 of the Uniform Commercial Code (i) the certificates representing such Pledged Interests and (ii) duly executed, undated stock powers or other appropriate powers of assignment in blank affixed thereto;
(i) Uniform Commercial Code financing statements on form UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming the General Collateral Agent for the benefit of the General Secured Parties as "Secured Party," in form, substance and number sufficient in the reasonable opinion of the Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary or advisable to perfect in favor of the General Collateral Agent for the benefit of the General Secured Parties the General Lien on such security documents related Subsidiary Securities and (ii) if the Pledged Interests issued by such Subsidiary do not constitute securities and such Subsidiary has not elected to personaltyhave such interests treated as securities under Article 8 of the applicable Uniform Commercial Code, together with appropriate financing statementsa control agreement from the Registrar of such Subsidiary, reasonably requested by Agent, all in form and substance reasonably satisfactory acceptable to the Agent and in which the Registrar (1) acknowledges that the pledgor is at the date of such acknowledgment the sole record, and to its knowledge, beneficial owner of such Subsidiary Securities, (2) acknowledges the General Lien in favor of the General Collateral Agent conferred under the Pledge Agreement and that such General Lien will be reflected on the registry for such Subsidiary Securities, (3) agrees that it will not register any transfer of such Subsidiary Securities nor acknowledge any Lien in favor of any other Person on such Subsidiary Securities, without the prior written consent of the General Collateral Agent, in each instance, until it receives notice from the General Collateral Agent that all General Liens on such Collateral in favor of the General Collateral Agent for the benefit of the General Secured Parties have been released or terminated, and (ii4) with respect agrees that upon receipt of notice from the Agent or the General Collateral Agent that an Event of Default has occurred and is continuing and that the Subsidiary Securities identified in such notice have been transferred to all new Restricted Subsidiaries that are directly owned a transferee identified in whole or in part by a U.S. Credit Party or a Canadian Credit Partysuch notice, cause it will duly record such Credit Party to provide to Agent transfer of Subsidiary Securities on the appropriate registry without requiring further consent from the pledgor and shall thereafter treat the transferee as the sole record and beneficial owner of such Subsidiary Securities pending further transfer, notwithstanding any contrary instruction received from the pledgor;
(g) a supplement to the U.S. appropriate schedule attached to the appropriate Security Agreement Documents listing the additional Collateral, certified as true, correct and complete by an authorized officer (provided that the failure to deliver such supplement shall not impair the rights conferred under the Security Documents in after acquired Collateral);
(h) an opinion or opinions of counsel to the Canadian Security Agreement, Subsidiary (including local counsel in each jurisdiction where Mortgaged Property is located) dated as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case date of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) delivery of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary Facility Guaranty and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, other Related Documents provided for in each case this paragraph 5N and addressed to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgeCollateral Agents, in form and substance reasonably satisfactory acceptable to Agentthe Collateral Agents (which opinion may include assumptions and qualifications of similar effect to those contained in the opinions of counsel delivered previously), to the effect that:
(i) such Subsidiary is duly organized, validly existing and in good standing in the jurisdiction of its formation, has the requisite power and authority to own its properties and conduct its business as then owned and then conducted and proposed to be conducted and to execute, deliver and perform the Facility Guaranty and other documents described in this paragraph 5N to which such Subsidiary is a signatory, and is duly qualified to transact business and is in good standing as a foreign corporation or partnership in each other jurisdiction in which the character of the properties owned or leased, or the business carried on by it, requires such qualification and the failure to be so qualified would reasonably be likely to result in a Material Adverse Effect;
(ii) the execution, delivery and performance of the Facility Guaranty and other documents described in this paragraph 5N to which such Subsidiary is a signatory have been duly authorized by all requisite corporate or partnership action (including any required shareholder or partner approval), each of such agreements has been duly executed and delivered and constitutes the valid and binding agreement of such Subsidiary, enforceable against such Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors' rights generally and to the effect of general principles of equity (whether considered in a proceeding at law or in equity);
(iii) provide or cause the Subsidiary Securities of such Subsidiary are duly authorized, validly issued, fully paid and nonassessable, and free of any preemptive rights, and the applicable General Security Instrument (including foreign collateral documents) is effective to be provided create a valid security interest in favor of the General Collateral Agent for the benefit of the General Secured Parties in such Subsidiary Securities as constitute Pledged Interests;
(iv) (A) the Uniform Commercial Code financing statements on Form UCC-1 delivered to the General Collateral Agent by the Subsidiary in connection with the delivery of the General Security Instruments of such Subsidiary have been duly executed by the Subsidiary and are in form, substance and number sufficient for filing in all other customary and reasonable documentation requested thereby, including, Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary to perfect in favor of the General Collateral Agent for the benefit of the General Secured Parties the General Lien on General Collateral conferred under such General Security Instruments to the extent requested such General Lien may be perfected by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.Uniform Commercial Code filing;
Appears in 1 contract
Samples: Note Agreement (Cone Mills Corp)
New Subsidiaries. With respect to (ax) Within any new direct or indirect Subsidiary of any Loan Party formed or acquired after the Closing Date (such a Subsidiary, a "New Subsidiary"), and (y) any Exempt Subsidiary that at any time ceases to be an Exempt Subsidiary (such a Subsidiary, a "Newly Eligible Subsidiary"), the Borrower shall, at its own expense, promptly, and in any event within thirty (30) Business Days of after the formation of any Restricted Subsidiaryformation, acquisition or loss of a Restricted Subsidiary, exempt status of such New Subsidiary or Newly Eligible Subsidiary (i) notify the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Administrative Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agentevent, (ii) with respect to all new Restricted Subsidiaries that are directly owned any New Subsidiary, amend or supplement the Security Documents as appropriate in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause light of such Credit Party event to provide to Agent a supplement pledge to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing Administrative Agent for the pledge benefit of itself and the Lenders (A) if not a Tax Preferred Subsidiary, 100% of the Capital Stock in Equity Securities of such new Restricted New Subsidiary owned by it a Loan Party and (orB) if a Tax Preferred Subsidiary, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) % of the non-voting Capital Stock Equity Securities and 65% of the voting Equity Securities of such Foreign SubsidiaryNew Subsidiary owned by a Loan Party and execute and deliver all documents or instruments required thereunder or appropriate to perfect the security interest created thereby, in each case (iii) deliver to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Administrative Agent together with appropriate all stock certificates and other instruments added to the Collateral thereby free and clear of all Liens, accompanied by undated stock powers or financing statements under other instruments of transfer executed in blank, (iv) cause each such New Subsidiary that is not an Exempt Subsidiary and each Newly Eligible Subsidiary to execute and become a party to the Code or Guaranty, (v) cause each such New Subsidiary that is not an Exempt Subsidiary and each such Newly Eligible Subsidiary to execute and become a party to the PPSASecurity Agreement and the Pledge Agreement, and (vi) cause each document (including, as applicable, each Security Document, each deed of trust or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary mortgage with respect to real property owned by such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such New Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result Newly Eligible Subsidiary in personal or criminal liability on the part of any officerfee simple, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower each UCC financing statement and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required each filing with respect to intellectual property owned by such New Subsidiary or Newly Eligible Subsidiary) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Lenders a valid, legal and perfected first-priority security interest in and lien on the Collateral owned by a Credit Party pursuant subject to the terms of Security Documents to be so filed, registered or recorded and evidence thereof delivered to the Collateral DocumentsAdministrative Agent.
Appears in 1 contract
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and As soon as practicable but in any event within 30 days Business Days following the acquisition or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge creation of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign any Domestic Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entityan Excluded Subsidiary), sixty-five percent (65%) or the time any existing Excluded Subsidiary ceases to be an Excluded Subsidiary, cause to be delivered to the Administrative Agent each of the total combined voting power of all classes following, as applicable: (a) a joinder agreement reasonably acceptable to the Administrative Agent duly executed by such Domestic Subsidiary sufficient to cause such Subsidiary to become a Guarantor (or, with the consent of the voting Capital Stock Administrative Agent, a Borrower hereunder), together with executed counterparts of each other Loan Document reasonably requested by the Administrative Agent, including all Security Instruments and
(i) Uniform Commercial Code financing statements naming such Foreign Subsidiary Person as “Debtor” and one-hundred percent (100%) naming the Administrative Agent for the benefit of the non-voting Capital Stock Secured Parties as “Secured Party,” in form, substance and number sufficient in the reasonable opinion of the Administrative Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is necessary to perfect in favor of the Administrative Agent for the benefit of the Secured Parties the Lien on the Collateral conferred under such Foreign Subsidiary, in each case Security Instrument to the extent that such Capital Stock does not constitute Lien may be perfected by Uniform Commercial Code filing, and (ii) pledge agreements, security agreements, control agreements, and original collateral (including pledged Equity Interests (other than Excluded Property or Excluded Principal PropertyEquity Interests), as shall be requested by Agent together with appropriate certificates Securities and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or Instruments) and such other documents and agreements as may be reasonably required by the Administrative Agent, all as necessary to perfect establish and maintain a valid, perfected security interest in all Collateral in which such pledgeDomestic Subsidiary has an interest consistent with the terms of the Loan Documents; (c) upon the reasonable request of the Administrative Agent, an opinion of counsel to each such Domestic Subsidiary and addressed to the Administrative Agent and the Lenders, in form and substance reasonably satisfactory acceptable to the Administrative Agent, each of which opinions may be in form and (iii) provide or cause substance, including assumptions and qualifications contained therein, substantially similar to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more those opinions of counsel reasonably satisfactory delivered pursuant to AgentSection 5.01(a); (d) current copies of the Organization Documents of each such Domestic Subsidiary, which in its opinion is together with minutes of duly called and conducted meetings (or duly effected consent actions) of the Board of Directors, partners, or appropriate committees thereof (and, if required by such Organization Documents or applicable law, of the shareholders, members or partners) of such Person authorizing the actions and customary with respect to such the execution and delivery of documents described in this Section 7.12, all certified by a Responsible Officer of such Domestic Subsidiary (and applicable Governmental Authority in the applicable documentation referred case of charter documents); and (e) with respect to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted any Subsidiary shall to become a Credit Party hereunder with the same force Borrower hereunder, within five (5) Business Days prior to becoming a Borrower, all “know-your-customer” and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits customer due diligence documentation satisfactory to the Lenders of to the extent such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined information is requested by Parent Borrower and the Administrative Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect the Lenders reasonably promptly after written notice to the Collateral owned by a Credit Party pursuant to the terms Administrative Agent of the Collateral Documentsproposed joinder of a Borrower.
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
New Subsidiaries. (a) Within thirty (30) Business Days of Simultaneously with the formation acquisition or creation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded a Subsidiary of a Canadian Company, cause to deliver be delivered to the Agent each of the following:
(Ai) a Joinder Agreement (which Joinder Agreement will specify whether Guaranty executed by such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Subsidiary substantially in the form attached hereto as of Exhibit 1.1(a), and to deliver to Agent D;
(ii) a Subsidiary Security Agreement of such security documents related to personaltySubsidiary substantially in the form of Exhibit E, together with appropriate such Uniform Commercial Code financing statementsstatements on Form UCC-1 naming such Subsidiary as “Debtor” and naming the Agent for the benefit of the Lenders as “Secured Party”, reasonably in form, substance and number sufficient in the reasonable opinion of the Agent and its counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Lenders the Lien on the Collateral to the extent such Lien may be perfected by Uniform Commercial Code filing;
(iii) an amendment to the Pledge Agreement which results in all of the stock or other ownership interests of the Subsidiary to be subject to the Pledge Agreement and further deliver to the Agent all certificates of stock or other ownership interests as Agent may require in order for Agent to perfect a security interest in such stock or ownership interests;
(iv) if requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement an opinion of counsel to the U.S. Subsidiary dated as of the date of delivery of the Guaranty and other Loan Documents provided for in this Section 7.01(g) and addressed to the Agent and the Lenders, as to the due execution delivery and enforceability of the Guaranty and the Subsidiary Security Agreement or and such other matters as reasonably required by the Canadian Security Agreement, as applicable, providing for the pledge Agent;
(v) current copies of the Capital Stock in organizational documents of such new Restricted Subsidiary owned by it (orSubsidiary, in the case minutes of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada duly called and conducted meetings (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%duly effected consent actions) of the total combined voting power Board of all classes Directors, partners, or appropriate committees thereof (and, if required by such organizational documents, operating documents or applicable law, of the voting Capital Stock shareholders, members or partners) of such Foreign Subsidiary authorizing the actions and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain documents described in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis Section 7.01(g).
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (QC Holdings, Inc.)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and As soon as practicable but in any event within 30 days Business Days (or such longer period as the Administrative Agent may shall agree, in its discretion) following the acquisition or creation of any Domestic Subsidiary, cause to be delivered to the Administrative Agent each of the following, as applicable: (a) a joinder agreement acceptable to the Administrative Agent duly executed by such Subsidiary sufficient to cause such Domestic Subsidiary to become a Borrower (or, at Administrative Agent’s discretion, a Guarantor), together with executed counterparts of each other Loan Document reasonably requested by the Administrative Agent, including all Security Instruments and other documents reasonably requested to establish and preserve the Lien of the Administrative Agent in all Collateral of such Domestic Subsidiary; (b)
(i) cause each Uniform Commercial Code financing statements naming such new Restricted Subsidiary that Person as “Debtor” and naming the Administrative Agent for the benefit of the Secured Parties as “Secured Party,” in form, substance and number sufficient in the reasonable opinion of the Administrative Agent and its special counsel to be filed in all Uniform Commercial Code filing offices and in all jurisdictions in which filing is not an Excluded Subsidiary necessary to deliver perfect in favor of the Administrative Agent for the benefit of the Secured Parties the Lien on the Collateral conferred under such Security Instrument to Agent the extent such Lien may be perfected by Uniform Commercial Code filing, and (Aii) a Joinder Agreement pledge agreements, control agreements, Documents and original collateral (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunderincluding pledged Equity Interests, Securities and Instruments) and (B) a supplemental Guaranty in such other documents and agreements as may be reasonably required by the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Administrative Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect establish and maintain a valid, perfected security interest in all Collateral in which such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary Domestic Subsidiary has an interest consistent with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Loan Documents.; 143
Appears in 1 contract
New Subsidiaries. (ai) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor Subsidiary or at any time a Subsidiary becomes a Restricted Subsidiary or ceases to be an Excluded Subsidiary, Borrowers Parent Borrower shall notify Agent of such event and, promptly 150 thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Loan Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a)G, and to deliver to Agent such security documents related to personaltydocuments, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Loan Party, cause such Credit Loan Party to provide to Agent a supplement to the U.S. Security Agreement or the applicable Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a FSHCO or a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Loan Party organized under the laws of Canada (or any province or territory thereof)) that is not a Specified Entity)CFC, sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary or FSHCO and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign SubsidiarySubsidiary or FSHCO, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code UCC or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Loan Party hereunder with the same force and effect as if originally named as a Credit Loan Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Loan Party or Lender hereunder. The rights and obligations of each Credit Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Loan Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(bii) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (DB) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Loan Party pursuant to the terms of the Collateral Documents.. 151
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx gxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
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New Subsidiaries. (a) Within thirty (30) Business Days At the time of the formation of any Restricted Subsidiary, Subsidiary of any Credit Party or acquisition of a Restricted SubsidiarySubsidiary of any Credit Party pursuant to Section 6.1(a), the designation Credit Parties, or any of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiarythem, Borrowers as appropriate, shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (ia) cause each such new Restricted United States domestic Subsidiary that is not an Excluded to join this Agreement by providing to Agent a joinder agreement in the form of Exhibit 5.13 hereto (a “Credit Agreement Joinder Agreement”), (b) cause each such new United States domestic Subsidiary to deliver to Agent (A) a Joinder supplement to the Guaranty, a supplement to the Security Agreement, a supplement to the Pledge Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(aapplicable), and to deliver to Agent such other security documents related (including, without limitation, any mortgage, deed to personaltysecure debt or deed of trust where such Subsidiary owns real property and an appraisal (which shall be compliant with FIRREA to the extent required by applicable law as determined by Agent), Flood Insurance with respect to any Mortgaged Property as required by Section 5.4, as applicable) requested by Agent in its discretion, together with appropriate UCC-1 financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to AgentAgent and subject to Permitted Encumbrances, (iic) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Pledge Agreement, as applicable, or such other Pledge Agreements, in each case, providing for the pledge (subject to Permitted Encumbrances) of the Capital Stock direct and beneficial interests in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary the pledge of a Credit Party organized under the laws direct Foreign Subsidiary, 65% of Canada (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%) all of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%Subsidiary) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent Agent, together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable movable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent; provided, that no such pledge shall be required with respect to the Stock of a new Foreign Subsidiary of a Credit Party unless and until such Subsidiary has assets with a value of $1,000,000 or more, and (iiid) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such formation and the execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the a Credit Agreement Joinder Agreement by each such new Restricted United States domestic Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the any Credit Agreement Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein Any document, agreement or in any other Loan Document instrument executed or issued pursuant to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower this Section 5.13 shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, a “thin capitalizationLoan Document” rules or similar principles, (B) is not within the legal capacity for purposes of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentsthis Agreement.
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New Subsidiaries. (a) Within thirty ten (3010) Business Days of the formation of any Restricted SubsidiarySubsidiary of any Credit Party, acquisition of a Restricted Subsidiary, the designation Subsidiary of a Designated Guarantor any Credit Party or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers Credit Parties, or any of them, as appropriate, shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not a Domestic Subsidiary (other than an Excluded Domestic Subsidiary) to join this Agreement as a Credit Party by providing to Agent a joinder agreement, in form and substance reasonably satisfactory to Agent, (ii) cause each such new Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Domestic Subsidiary) to deliver to Agent a Guaranty, a supplement to the Security Agreement, a supplement to the Pledge Agreement, and such other security documents (A) a Joinder Agreement including, without limitation, any mortgage, deed to secure debt or deed of trust where such Restricted Subsidiary owns real property and an appraisal (which Joinder Agreement will specify whether such new Credit Party will shall be a “Borrower” hereundercompliant with FIRREA to the extent required by applicable law as determined by Agent) and (BFlood Insurance with respect to any Mortgaged Property as required by Section 6.9, as applicable) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personaltyreasonably requested by Agent, together with appropriate UCC-1 financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (iiiii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Pledge Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock direct and beneficial interests in such new Restricted Subsidiary owned by it (or, in the case of a Foreign Subsidiary (other than a Foreign Subsidiary the pledge of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity)direct Foreign Subsidiary, sixty-five percent (65%) of the total combined voting power of all classes of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), ) as shall be requested by Agent Agent, together with appropriate certificates and powers or financing statements under the Code (or the PPSA, as applicable, any similar document required under personal property security laws of Mexico) or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iiiiv) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement joinder agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement joinder agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance Any document, agreement or instrument executed or issued pursuant to this Section 6.15 shall be a “Loan Document” for purposes of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis Agreement.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to to:
(i) execute and deliver any joinder agreement, Guaranty, Collateral Document Guaranty or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) would result in material adverse tax consequences; provided, however, that utilization of the net operating losses of the Credit Parties shall be excluded from Borrower’s determination of whether any such joinder, pledge, mortgage or other grant of security interest would result in material adverse tax consequences to the Credit Parties, (C) is not within the legal capacity of Borrowers Borrower or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, officer or (CD) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security security; or
(ii) pledge as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party any assets excluded therefrom pursuant to the terms relevant Collateral Documents (including, for the avoidance of doubt, more than 65% of the Collateral Documentstotal combined voting power of all classes of the issued and outstanding Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by Borrower or any of the Credit Parties which is a Domestic Subsidiary.
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New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor Subsidiary or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary (that is not an Excluded Subsidiary for purposes of clauses (i) and (ii) below) to deliver (i) join this Agreement as a Credit Party by providing to Agent a joinder agreement, in form and substance reasonably satisfactory to Agent (A) a Joinder Agreement (which Joinder Agreement joinder agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to (ii) deliver to Agent a Guaranty, a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, and such other security documents related to personalty, together with appropriate financing statements, all in form and substance reasonably satisfactory to Agent reasonably requested by Agent, together with appropriate financing statements, all in form and substance reasonably satisfactory to Agent, (iiiii) with respect to all new Restricted Subsidiaries (for the avoidance of doubt, including Excluded Subsidiaries) that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of the pledge under the U.S. Security Agreement of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof) that is not a Specified Entity)Subsidiary, sixty-five percent (65%) of the total combined voting power of all classes of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property(as defined in the relevant security document)), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iiiiv) provide or cause to be provided to Agent all other customary and reasonable documentation requested therebydocumentation, including, to the extent requested by Agent, including one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement joinder agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement joinder agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrarydoubt, no Excluded Foreign Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCGuaranty.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, officer or (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documentssecurity.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (XPO Logistics, Inc.)
New Subsidiaries. (ai) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor Subsidiary or at any time a Subsidiary becomes a Restricted Subsidiary or ceases to be an Excluded Subsidiary, Borrowers Parent Borrower shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Loan Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a)G, and to deliver to Agent such security documents related to personaltydocuments, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Loan Party, cause such Credit Loan Party to provide to Agent a supplement to the U.S. Security Agreement or the applicable Canadian Security Agreement, as applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by it (or, in the case of a FSHCO or a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Loan Party organized under the laws of Canada (or any province or territory thereof)) that is not a Specified Entity)CFC, sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary or FSHCO and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign SubsidiarySubsidiary or FSHCO, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code UCC or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Loan Party hereunder with the same force and effect as if originally named as a Credit Loan Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Loan Party or Lender hereunder. The rights and obligations of each Credit Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Loan Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(bii) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (DB) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Loan Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
New Subsidiaries. (a) Within thirty (30) Business Days of Simultaneously with the formation acquisition or creation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each such new Restricted Subsidiary that is not an Excluded a Subsidiary of a Canadian Company, cause to deliver be delivered to the Agent each of the following:
(Ai) a Joinder Agreement (which Joinder Agreement will specify whether Guaranty executed by such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty Subsidiary substantially in the form attached hereto as of Exhibit 1.1(a), and to deliver to Agent C;
(ii) a Subsidiary Security Agreement of such security documents related to personaltySubsidiary substantially in the form of Exhibit D, together with appropriate such Uniform Commercial Code financing statementsstatements on Form UCC-1 naming such Subsidiary as “Debtor” and naming the Agent for the benefit of the Lenders as “Secured Party”, reasonably in form, substance and number sufficient in the reasonable opinion of the Agent and its counsel to be filed in all Uniform Commercial Code filing offices in all jurisdictions in which filing is necessary or advisable to perfect in favor of the Agent for the benefit of the Lenders the Lien on the Collateral to the extent such Lien may be perfected by Uniform Commercial Code filing;
(iii) an amendment to the Pledge Agreement which results in all of the stock or other ownership interests of the Subsidiary to be subject to the Pledge Agreement and further deliver to the Agent all certificates of stock or other ownership interests as Agent may require in order for Agent to perfect a security interest in such stock or ownership interests;
(iv) if requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement an opinion of counsel to the U.S. Subsidiary dated as of the date of delivery of the Guaranty and other Loan Documents provided for in this Section 7.01(g) and addressed to the Agent and the Lenders, as to the due execution delivery and enforceability of the Guaranty and the Subsidiary Security Agreement or and such other matters as reasonably required by the Canadian Security Agreement, as applicable, providing for the pledge Agent;
(v) current copies of the Capital Stock in organizational documents of such new Restricted Subsidiary owned by it (orSubsidiary, in the case minutes of a Foreign Subsidiary (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada duly called and conducted meetings (or any province or territory thereof) that is not a Specified Entity), sixty-five percent (65%duly effected consent actions) of the total combined voting power Board of all classes Directors, partners, or appropriate committees thereof (and, if required by such organizational documents, operating documents or applicable law, of the voting Capital Stock shareholders, members or partners) of such Foreign Subsidiary authorizing the actions and one-hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary, in each case to the extent that such Capital Stock does not constitute Excluded Property or Excluded Principal Property), as shall be requested by Agent together with appropriate certificates and powers or financing statements under the Code or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain documents described in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRCthis Section 7.01(g).
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be required to execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation to the benefits to the Lenders of such Borrower’s or such Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (QC Holdings, Inc.)
New Subsidiaries. (a) Within thirty (30) Business Days of the formation of any Restricted SubsidiaryThe Borrower shall, acquisition of a Restricted Subsidiaryat its own expense promptly, the designation of a Designated Guarantor or at any time a Subsidiary becomes a Restricted Subsidiary, Borrowers shall notify Agent of such event and, promptly thereafter (and in any event (i) within 30 days ten (10) Business Days (or such longer period as may be agreed to by the Administrative Agent) after the formation of any Domestic Subsidiary or any Foreign Subsidiary or the date any Domestic Subsidiary that was initially an Excluded Subsidiary ceases to be an Excluded Subsidiary or (ii) as of the date of the acquisition of any Domestic Subsidiary or any Foreign Subsidiary (or with respect to any Domestic Subsidiary becoming a party to the Guaranty, the Pledge Agreement and each other applicable Security Document in accordance with the terms thereof as contemplated by clause (B), within 30 days (or such longer period as may be agreed to by the Administrative Agent) after such acquisition as contemplated by Section 5.02(d)(ii)(I)):
(A) notify the Administrative Agent may agreeof such event in writing and provide a certificate of a Responsible Officer certifying, with respect to such Subsidiary, (1) its jurisdiction of organization, (i2) class of its Equity Securities, (3) number of Equity Securities of each such class issued and outstanding, (4) percentages of Equity Securities of each such class owned directly or indirectly by a Loan Party and whether such Loan Party owns such Equity Securities directly or, if not, the Subsidiary of such Loan Party that owns such Equity Securities and the number of Equity Securities and percentages of Equity Securities of each such class owned directly or indirectly by such Loan Party and (5) that all of the outstanding Equity Securities of such Subsidiary owned by a Loan Party are owned beneficially and of record by such Loan Party free and clear of all adverse claims,
(B) cause each such new Restricted Domestic Subsidiary that is not (other than an Excluded Subsidiary but including each Domestic Subsidiary that ceases to deliver be an Excluded Subsidiary) to Agent become a party to the Guaranty, the Pledge Agreement and each other applicable Security Document in accordance with the terms thereof, execute additional Security Documents (Aincluding foreign pledge agreements (or the foreign equivalent thereof)) a Joinder Agreement (which Joinder Agreement will specify whether such new Credit Party will be a “Borrower” hereunder) and (B) a supplemental Guaranty in the form attached hereto as Exhibit 1.1(a), and to deliver to Agent such security documents related to personalty, together with appropriate financing statements, if reasonably requested by Agent, all the Administrative Agent (provided that the Administrative Agent agrees to consider the costs and benefits of any such requests in form its reasonable business judgment) and substance reasonably satisfactory amend the Security Documents as appropriate in light of such event to Agent, (ii) with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a U.S. Credit Party or a Canadian Credit Party, cause such Credit Party to provide to Agent a supplement pledge to the U.S. Security Agreement or the Canadian Security Agreement, as applicable, providing Administrative Agent for the pledge benefit of itself and the Lenders (1) 100% of the Capital Stock in Equity Securities of each such new Restricted Person which becomes a Domestic Subsidiary owned by it of the Borrower or any Guarantor (or, in the case of a Foreign Subsidiary domestic Non-Wholly-Owned Subsidiary, such lesser percentage owned by the Borrower and the Guarantors) and (other than a Foreign Subsidiary of a Credit Party organized under the laws of Canada (or any province or territory thereof2) that is not a Specified Entity), sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary and one-hundred percent (100%) % of the non-voting Capital Stock Equity Securities (within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) (or, in the case of a domestic Non-Wholly-Owned Subsidiary, such lesser percentage owned by the Borrower and the Guarantors) and 66% (or 100% in the case of any first-tier Foreign Subsidiary that is a disregarded entity, partnership or grantor trust (i.e., a flow-through entity) for U.S. federal income tax purposes (or, in the case of a domestic Non-Wholly-Owned Subsidiary, such lesser percentage owned by the Borrower and the Guarantors)) of the voting Equity Securities (within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) of each such Person which becomes a first-tier Foreign Subsidiary of the Borrower or any Guarantor and execute and deliver all documents or instruments required thereunder or appropriate to perfect the security interest created thereby,
(C) deliver (or cause the appropriate Person to deliver) to the Administrative Agent all certificates and other instruments constituting Collateral thereunder free and clear of all adverse claims, accompanied by undated stock powers or other instruments of transfer executed in blank (and take such other steps as may be requested by the Administrative Agent to perfect the Administrative Agent’s first priority Lien in such Collateral consisting of Equity Securities in compliance with any applicable laws of jurisdictions outside of the United States of America, provided that the Administrative Agent agrees to consider the costs and benefits of requesting any such steps in its reasonable business judgment),
(D) cause each document (including each Uniform Commercial Code financing statement ) required by law or requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Lenders a valid, legal and perfected first-priority security interest in and lien on the Collateral subject to the Security Documents to be so filed, registered or recorded and evidence thereof delivered to the Administrative Agent,
(E) deliver an opinion of counsel in form and substance satisfactory to the Administrative Agent with respect to each new Guarantor and all documents executed by such Guarantor and/or the applicable Loan Party and the security documents and foreign pledge agreements (or the foreign equivalent thereof) delivered by such Loan Party in respect of any Foreign Subsidiary, in each case and
(F) deliver to the extent that Administrative Agent the same organization documents, resolutions, certificates, lien searches and other matters set forth in Schedule 3.01(b) and (d) with respect to such Capital Stock does not constitute Excluded Property or Excluded Principal Property), new Guarantor as shall required to be requested by Agent together delivered with appropriate certificates and powers or financing statements under respect to the Code or Borrower on the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledgedate hereof, in form and substance reasonably satisfactory to Administrative Agent, . It is understood and (iii) provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate and customary with respect to such execution and delivery agreed that as of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted SubsidiaryClosing Date, such Restricted Subsidiary shall become a Credit Party hereunder with the same force and effect as if originally named as a Credit Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Credit Party or Lender hereunder. The rights and obligations of each Credit Party hereunder shall remain in full force and effect notwithstanding the addition of any Credit Party hereunder. For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contraryRed Envelope Entertainment, no LLC is an Excluded Subsidiary (other than a Designated Guarantor) shall execute a Guaranty or any Collateral Document in respect of, or otherwise guaranty or grant any Lien to secure, any Obligation of a U.S. Borrower or other U.S. Credit Party or of any “United States person” as defined in section 7701(a)(30) of the IRC.
(b) Notwithstanding anything to the contrary contained herein, neither Borrower nor any Subsidiary of any Borrower shall be and is not required to execute and deliver any joinder agreementthe Guaranty or the Pledge Agreement until such time as Red Envelope Entertainment, Guaranty, Collateral Document or any other document or xxxxx x Xxxx in any Capital Stock or other property held by it if such action (A) is restricted or prohibited by general statutory limitations, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules or similar principles, (B) is not within the legal capacity of Borrowers or such Subsidiary or would conflict with the fiduciary duties of its directors or contravene any legal prohibition or result in personal or criminal liability on the part of any officer, (C) for reasons of cost, legal limitations or other matters is unreasonably burdensome in relation LLC ceases to the benefits to the Lenders of such Borrower’s or such be an Excluded Subsidiary’s guaranty or security as reasonably determined by Parent Borrower and Agent or (D) is Excluded Property or Excluded Principal Property or otherwise would not be required with respect to the Collateral owned by a Credit Party pursuant to the terms of the Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (Netflix Inc)
