Post Closing Action Related to Collateral. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, the parties hereto acknowledge and agree that the Company and the relevant Subsidiary shall be required to take the following actions as promptly as reasonably practicable, and in any event (a) within 90 days after the Issue Date with respect to paragraphs (i),(ii),(iii),(iv),(v) and (vii) below and within 120 days after the Issue Date with respect to paragraphs (vi) below: (i) fully executed counterparts of Mortgages, as appropriate which Mortgages shall cover the Mortgaged Property owned or leased by the Company or Subsidiary as designated on Annex A hereto, together with evidence that counterparts of the Mortgages, have been delivered to the title insurance company insuring the Lien of such Mortgages for recording in all places to the extent necessary or, in the reasonable opinion of the Trustee, desirable to effectively create a valid and enforceable junior-priority mortgage Lien on each Mortgaged Property in favor of the Trustee for the benefit of the Notes Secured Creditors, securing the Obligations under this Indenture, the Notes and the Security Documents (provided that in jurisdictions that impose mortgage recording taxes, such Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Real Estate, as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee), subject to (i) those Liens, created by the Security Documents, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property and found reasonably acceptable by the Trustee, (iii) as to any particular Real Estate at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, or the Lien or hypothec held by the Trustee, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, (vi) such other similar items as the Trustee may consent to (such consent not to be unreasonably withheld), (vii) Permitted Exceptions and (viii) the PBGC Liens; (ii) with respect to each Mortgage intended to encumber a Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy) in an amount not less than 100% of the fair market value of such Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee, (such policies collectively, “the Mortgage Policies”) issued by such title insurers, which reasonably assures the Trustee that the Mortgages, as the case may be, on such Mortgaged Properties are valid and enforceable junior priority mortgage Liens on the respective Mortgaged Properties, free and clear of all defects and encumbrances except encumbrances described in clauses (i) through (vii) of subparagraph (i) above and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Trustee and shall include, as appropriate, to the extent available at commercially reasonably rates, an endorsement for future advances and for any and all other matters that the Trustee may reasonably request, shall not include an exception for mechanics’ liens or creditors’ rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Trustee may reasonably request; (iii) surveys, in form and substance reasonably satisfactory to the Trustee, of each Mortgaged Property designated as a “Surveyed Property” on Annex B hereto, dated a date acceptable to the Trustee and certified in a manner reasonably satisfactory to the Trustee by a licensed professional surveyor reasonably satisfactory to the Trustee; it being understood that any surveys delivered in connection with requirements of the Credit Agreement shall be satisfactory to the extent such surveys shall be acceptable by the title insurance company to issue the coverage required pursuant to clause (ii) above; (iv) duly authorized, fully executed, acknowledged and delivered subordination, nondisturbance and attornment agreements, assignment of leases, landlord consents, tenant estoppel certificates and such other documents relating to the Mortgages that the Trustee may reasonably request, it being understood that the foregoing shall be required to the extent the same was delivered in connection with the requirements in the Credit Agreement; (v) proper fixture filings under the UCC on Form UCC-1 or the equivalent fully executed for filing under the UCC in the appropriate jurisdiction in which the Mortgaged Properties are located, desirable to perfect the security interests purported to be created by the Mortgage in favor of the Trustee for the benefit of the Notes Secured Creditors; (vi) the opinions, addressed to the Trustee and the Notes Secured Creditors, of (1) Xxxxxxxx & Xxxxx LLP, special counsel to the Company or other special counsel or in-house counsel, as to the due authorization, execution and delivery of the Mortgages by the Company, and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance reasonably satisfactory to the Trustee; and (vii) a pledge agreement under the law of the Netherlands providing for the pledge of 65% of the shares of Exide Global Holding Netherlands C.V. to the Trustee for the benefit of the Notes Secured Creditors and an opinion of Netherlands counsel with respect to such pledge agreement, in each case, inform and substance reasonably satisfactory to the Trustee. (b) Within ten Business Days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date, UCC, judgment, tax lien, and Intellectual Property searches in the respective jurisdictions of the organization of the Company, (y) in the respective jurisdiction where the chief executive offices of the Company are located and (z) in any other jurisdiction in which the Company store or maintain assets valued in excess of $500,000 in the aggregate; provided, however, that with respect to this clause searches will only be conducted at the secretary of state level; provided, however, to the extent such searches reveal Liens on any Collateral, other than Permitted Liens and other Liens expressly permitted under this Indenture, the Company shall use its reasonable best efforts to release such Liens as soon as reasonably practicable.
Appears in 1 contract
Samples: Indenture (Exide Technologies)
Post Closing Action Related to Collateral. Notwithstanding anything to the contrary contained in this Agreement, the Indenture or the Security Documents, the parties hereto acknowledge and agree that the Company and the relevant Subsidiary Guarantor shall be required to take the following actions as promptly as reasonably practicable, and in any event
(a) within 90 Within 45 days after the Issue Date with respect to paragraphs (i),(ii),(iii),(iv),(v) and (vii) below and within 120 days after the Issue Date with respect to paragraphs (vi) belowDate:
(i) fully executed counterparts of Mortgages, Mortgages or Amended and Restated Mortgages as appropriate which Mortgages or Amended and Restated Mortgages, as the case may be, (1) shall cover the Mortgaged Property owned or leased by the Company or Subsidiary any of its Guarantors, as are designated on Annex A hereto, together with evidence that counterparts of the MortgagesMortgages or Amended and Restated Mortgages as appropriate, have been delivered to the title insurance company insuring the Lien of such Mortgages or Amended and Restated Mortgages, as the case may be, for recording in all places to the extent necessary or, in the reasonable opinion of the TrusteeCollateral Agent, desirable to effectively create a valid and enforceable juniorsecond-priority mortgage Lien on each Mortgaged Property in favor of the Trustee Collateral Agent for the benefit of the Notes Secured Creditors, Creditors securing the Obligations obligations under this Indenture, the Notes and the Security Documents (provided that in jurisdictions that impose mortgage recording taxes, such Mortgages or Amended and Restated Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Real EstateProperty, as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee)Collateral Agent, subject to (i) those Liens, created by the Security Documents, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property and found reasonably acceptable by the TrusteeCollateral Agent, (iii) as to any particular Real Estate Mortgaged Property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, or the Lien lien or hypothec held by the TrusteeCollateral Agent, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, and (vi) such other similar items as the Trustee Collateral Agent may consent to (such consent not to be unreasonably withheld) (the liens described in clauses (i) through (v) of this sentence, collectively, the “Permitted Encumbrances”), (vii) Permitted Exceptions and (viii) the PBGC Liens;
(ii) with respect to each Mortgage intended to encumber a Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy) or with respect to each Amended and Restated Mortgage intended to encumber a Mortgaged Property, an endorsement of an existing policy of title insurance, insuring (or committing to insure) the Lien of such Mortgage or Amended and Restated Mortgage as a valid and enforceable second-priority mortgage Lien on the Mortgaged Properties described therein, in an amount not less than 100% of the fair market value of such Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the TrusteeCollateral Agent, (such policies collectively, “the Mortgage Policies”) issued by such title insurers, which reasonably assures the Trustee Collateral Agent that the Mortgages or Amended and Restated Mortgages, as the case may be, on such Mortgaged Properties are valid and enforceable junior second priority mortgage Liens liens on the respective Mortgaged Properties, free and clear of all defects and encumbrances except encumbrances described in clauses (i) through (vii) of subparagraph (i) above Permitted Encumbrances, and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Trustee and shall include, as appropriate, to the extent available at commercially reasonably rates, an endorsement for future advances and for any and all other matters that the Trustee Collateral Agent may reasonably request, shall not include an exception for mechanics’ liens or creditors’ rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Trustee Collateral Agent may reasonably request;
(iii) surveys, in form and substance reasonably satisfactory to the TrusteeCollateral Agent, of each Mortgaged Property designated as a “Surveyed Property” on Annex B hereto, dated a recent date acceptable to the Trustee Collateral Agent and certified in a manner reasonably satisfactory to the Trustee Collateral Agent by a licensed professional surveyor reasonably satisfactory to the Trustee; it being understood that any surveys delivered in connection with requirements of the Credit Agreement shall be satisfactory to the extent such surveys shall be acceptable by the title insurance company to issue the coverage required pursuant to clause (ii) aboveCollateral Agent;
(iv) duly authorized, fully executed, acknowledged and delivered subordination, nondisturbance and attornment agreements, assignment of leases, landlord consents, tenant estoppel certificates and such other documents relating to the Mortgages that the Trustee Collateral Agent may reasonably request, it being understood that the foregoing shall be required to the extent the same was delivered in connection with the requirements in the Credit Agreement;
(v) proper fixture filings under the UCC on Form UCC-1 or the equivalent fully executed for filing under the UCC in the appropriate jurisdiction in which the Mortgaged Properties are located, desirable to perfect the security interests purported to be created by the Mortgage or Amended and Restated Mortgages in favor of the Trustee Collateral Agent for the benefit benefits of the Notes Secured Creditorsholders of the Notes;
(vi) to the extent necessary in order to perfect the security interest in that portion of the Collateral constituting deposit accounts within the meaning of Section 9-102(a)(29) of the UCC, deposit account control agreements each substantially in the form of Annex M to the Security Agreement (each a “Control Agreement”) and satisfying the control requirement of Section 9-104(a)(2) of the UCC; provided that the Collateral Agent has specifically identified to the Company those deposit accounts required to be governed by a Control Agreement to meet the control requirements of the UCC; and
(vii) the opinions, addressed to the Trustee and the Notes Secured CreditorsInitial Purchasers, of (1) Xxxxxxxx & Xxxxx Xxxxxxxx LLP, special counsel to the Company or other special counsel or in-house counsel, as to the due authorization, execution and delivery of the Amended and Restated Mortgages by the Company, Company or any of the Guarantors and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance reasonably satisfactory to the Trustee; and
(vii) a pledge agreement under the law of the Netherlands providing for the pledge of 65% of the shares of Exide Global Holding Netherlands C.V. to the Trustee for the benefit of the Notes Secured Creditors and an opinion of Netherlands counsel with respect to such pledge agreement, in each case, inform and substance reasonably satisfactory to the TrusteeCollateral Agent.
(b) Within ten Business Days seven days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date any filings with the United States Patent and Trademark Office or the United States Copyright Office or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Trustee, desirable to perfect the security interests purported to be created by the Security Agreement.
(c) Within five days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date, UCC, judgment, tax lien, and Intellectual Property searches in proper forms of UCC-3 amendments or the respective jurisdictions equivalent under revised Article 9 of the organization of the Company, (y) UCC in the respective each applicable jurisdiction where the chief executive offices of the Company are located and (z) in any other jurisdiction in which the Company store or maintain assets valued in excess of $500,000 in the aggregate; provided, however, that with respect to this clause searches will only be conducted at the secretary of state level; provided, however, to the extent such searches reveal Liens on any Collateral, other than Permitted Liens and other Liens expressly permitted under this Indenture, the Company shall use its reasonable best efforts to release such Liens filed as soon as reasonably practicablepracticable in the jurisdiction of incorporation of the Company and each Guarantor, desirable to perfect the security interests purported to be created by the U.S. Security Agreement in favor of the Collateral Agent for the benefits of the holders of the Notes.
Appears in 1 contract
Samples: Indenture (Vertis Inc)
Post Closing Action Related to Collateral. (a) Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, the parties hereto Company and each Note Guarantor acknowledge and agree that the Company and or the relevant Subsidiary shall be required to take the following actions as promptly as reasonably practicable, and in any event
(a) within 90 days after the Issue Date with respect to paragraphs (i),(ii),(iii),(iv),(v) and (vii) below and within 120 days after the Issue Date with respect to paragraphs (vi) below:
(i) fully executed counterparts of Mortgages, as appropriate which Mortgages shall cover the Mortgaged Property owned or leased by the Company or Subsidiary as designated on Annex A hereto, together with evidence that counterparts of the Mortgages, have been delivered to the title insurance company insuring the Lien of such Mortgages for recording in all places to the extent necessary or, in the reasonable opinion of the Trustee, desirable to effectively create a valid and enforceable junior-priority mortgage Lien on each Mortgaged Property in favor of the Trustee for the benefit of the Notes Secured Creditors, securing the Obligations under this Indenture, the Notes and the Security Documents (provided that in jurisdictions that impose mortgage recording taxes, such Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Real Estate, as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee), subject to (i) those Liens, created by the Security Documents, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property and found reasonably acceptable by the Trustee, (iii) as to any particular Real Estate at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, or the Lien or hypothec held by the Trustee, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, (vi) such other similar items as the Trustee may consent to (such consent not to be unreasonably withheld), (vii) Permitted Exceptions and (viii) the PBGC Liens;
(ii) with respect to each Mortgage intended to encumber a Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy) in an amount not less than 100% of the fair market value of such Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee, (such policies collectively, “the Mortgage Policies”) issued by such title insurers, which reasonably assures the Trustee that the MortgagesNote Guarantor, as the case may be, shall, to the extent that consents are required from third parties in order to grant or perfect a Lien on any leasehold Real Property identified in Schedule II hereto, the Company or the Note Guarantor, as the case may be, have 90 days after the Issue Date in which such Mortgaged Properties are valid and enforceable junior priority mortgage Liens on Person shall use commercially reasonable efforts to obtain any such consent and, if so obtained, the respective Mortgaged PropertiesCompany or the Note Guarantor, free and clear of all defects and encumbrances except encumbrances described in clauses (i) through (vii) of subparagraph (i) above and such Mortgage Policies as the case may be, shall otherwise be in form and substance reasonably satisfactory provide to the Trustee the following:
(1) a Mortgage encumbering the leasehold interest in each such Mortgaged Property, duly executed and shall includeacknowledged by the Company or the Note Guarantor, as appropriatethe case may be, in form for recording in the appropriate recording office of the political subdivision where such leasehold Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required under applicable law in connection with the recording or filing thereof and any other instruments (including, inter alia, UCC-1 financing statements) required under applicable law to grant the liens and security interests purported to be granted by each such Mortgage, which Mortgages, financing statements and other instruments shall be effective to create a Lien on such leasehold Mortgaged Property in favor of the Trustee, subject to no Liens other than Permitted Liens;
(2) such consents, approvals, amendments, supplements, estoppels or other instruments as shall be reasonably necessary in order for the owner or holder of the leasehold interest to grant the Lien contemplated by the Mortgage with respect to each leasehold Mortgaged Property, subject to no liens other than Permitted Liens;
(3) with respect to each Mortgage of Real Property located in the United States of America, a policy of title insurance insuring the Lien of such Mortgage as a valid mortgage lien on the Real Property and improvements affixed thereto which by applicable law constitute real property described therein or the leasehold interest therein, if applicable, having a first priority Lien (subject only to Permitted Liens) in respect of the Notes in an amount equal to the Fair Market Value, and which policy shall have been supplemented by such commercially reasonable endorsements, including, without limitation, endorsements or other items (to the extent available at commercially reasonably reasonable rates) relating to usury, an endorsement for future advances first loss, last dollar, public road access (if available), contiguity (where appropriate), survey, doing business, lender non-imputation, subdivision map, separate tax lot and for any so-called comprehensive coverage over covenants and all other matters that the Trustee may reasonably request, shall not include an exception for mechanics’ liens or creditors’ rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Trustee may reasonably requestrestrictions;
(iii4) surveys, in form and substance reasonably satisfactory with respect to the Mortgage of real property located in the United Kingdom, a commercially reasonable report on title delivered to the Security Trustee, of ;
(5) a survey with respect to each Mortgaged Property designated located in the United States sufficient to remove the standard survey exception from the title insurance policy and issue all survey related endorsements;
(6) policies or certificates of insurance as a “Surveyed Property” on Annex B heretorequired by this Indenture and each Security Document, dated a date acceptable to the Trustee and certified in a manner reasonably satisfactory to the Trustee by a licensed professional surveyor reasonably satisfactory to the Trustee; it being understood that any surveys delivered in connection with requirements which policies or certificates shall bear endorsements of the Credit Agreement character required by such Security Document;
(7) UCC, judgment and tax lien searches confirming that the personal property comprising a part of each leasehold Mortgaged Property or the Collateral is subject to no Liens other than Permitted Liens;
(8) such affidavits, certificates and instruments of indemnification in favor of the title insurance company as shall be satisfactory reasonably and customarily required to the extent such surveys shall be acceptable by induce the title insurance company to issue the coverage required pursuant to clause policy or policies contemplated in subparagraph (iic) above;
(iv9) duly authorized, fully executed, acknowledged copies of all leases and delivered subordination, nondisturbance and attornment agreements, assignment of leases, landlord consents, tenant estoppel certificates and such other documents relating subleases;
(10) checks payable to the Mortgages that the Trustee may reasonably request, it being understood that the foregoing shall be required appropriate public officials in payment of all recording costs and transfer taxes (or checks or wire transfers to the extent title insurance company in respect of such amounts) due in respect of the same was delivered execution, delivery or recording of the Mortgages, together with a check or wire transfer for the title insurance company in payment of its premium, search and examination charges, applicable survey costs and any other amounts then due in connection with the requirements in the Credit Agreement;
(v) proper fixture filings under the UCC on Form UCC-1 or the equivalent fully executed for filing under the UCC in the appropriate jurisdiction in which the Mortgaged Properties are located, desirable to perfect the security interests purported to be created by the Mortgage in favor issuance of the Trustee for the benefit of the Notes Secured Creditors;
(vi) the opinions, addressed to the Trustee and the Notes Secured Creditors, of (1) Xxxxxxxx & Xxxxx LLP, special counsel to the Company or other special counsel or in-house counsel, as to the due authorization, execution and delivery of the Mortgages by the Company, and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance reasonably satisfactory to the Trusteeits policies; and
(vii11) a pledge agreement under the law of the Netherlands providing opinions from all local and foreign counsel for the pledge of 65% of the shares of Exide Global Holding Netherlands C.V. to the Trustee for the benefit of the Notes Secured Creditors and an opinion of Netherlands counsel Company, with respect to such pledge agreement, in each case, inform the Collateral and substance reasonably satisfactory to the TrusteeNotes.
(b) Within ten Business Days In addition, if at any time after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date, UCC, judgment, tax lien, and Intellectual Property searches in the respective jurisdictions of the organization of the Company, (y) in the respective jurisdiction where the chief executive offices of Date the Company are located and (z) in or any other jurisdiction in which the Company store or maintain assets valued in excess Note Guarantor shall purchase any of $500,000 in the aggregate; provided, however, that with respect to this clause searches will only be conducted at the secretary of state level; provided, however, to the extent such searches reveal Liens leasehold Real Property identified on any Collateral, other than Permitted Liens and other Liens expressly permitted under this IndentureSchedule II hereto, the Company shall use its reasonable best efforts or such Note Guarantor will cause such Real Property to release become Collateral in accordance with the terms of this Indenture and the Security Documents as though such Liens as soon as reasonably practicableReal Property constituted Replacement Assets under Section 12.5 of this Indenture.
Appears in 1 contract
Post Closing Action Related to Collateral. Notwithstanding anything to the contrary contained in this Agreement, the Indenture or the Security Documents, the parties hereto acknowledge and agree that the Company and the relevant Subsidiary Guarantor shall be required to take the following actions as promptly as reasonably practicable, and in any event
(a) within 90 Within 45 days after the Issue Date with respect to paragraphs (i),(ii),(iii),(iv),(v) and (vii) below and within 120 days after the Issue Date with respect to paragraphs (vi) belowDate:
(i) fully executed counterparts of Mortgages, Mortgages or Amended and Restated Mortgages as appropriate which Mortgages or Amended and Restated Mortgages, as the case may be, (1) shall cover the Mortgaged Property owned or leased by the Company or Subsidiary any of its Guarantors, as are designated on Annex A hereto, together with evidence that counterparts of the MortgagesMortgages or Amended and Restated Mortgages as appropriate, have been delivered to the title insurance company insuring the Lien of such Mortgages or Amended and Restated Mortgages, as the case may be, for recording in all places to the extent necessary or, in the reasonable opinion of the TrusteeCollateral Agent, desirable to effectively create a valid and enforceable juniorsecond-priority mortgage Lien on each Mortgaged Property in favor of the Trustee Collateral Agent for the benefit of the Notes Secured Creditors, Creditors securing the Obligations obligations under this Indenture, the Notes and the Security Documents (provided that in jurisdictions that impose mortgage recording taxes, such Mortgages or Amended and Restated Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Real EstateProperty, as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee)Collateral Agent, subject to (i) those Liens, created by the Security Documents, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property and found reasonably acceptable by the TrusteeCollateral Agent, (iii) as to any particular Real Estate Mortgaged Property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, or the Lien lien or hypothec held by the TrusteeCollateral Agent, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, and (vi) such other similar items as the Trustee Collateral Agent may consent to (such consent not to be unreasonably withheld) (the liens described in clauses (i) through (v) of this sentence, collectively, the “Permitted Encumbrances”), (vii) Permitted Exceptions and (viii) the PBGC Liens;
(ii) with respect to each Mortgage intended to encumber a Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy) or with respect to each Amended and Restated Mortgage intended to encumber a Mortgaged Property, an endorsement of an existing policy of title insurance, insuring (or committing to insure) the Lien of such Mortgage or Amended and Restated Mortgage as a valid and enforceable second-priority mortgage Lien on the Mortgaged Properties described therein, in an amount not less than 100% of the fair market value of such Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the TrusteeCollateral Agent, (such policies collectively, “the Mortgage Policies”) issued by such title insurers, which reasonably assures the Trustee Collateral Agent that the Mortgages or Amended and Restated Mortgages, as the case may be, on such Mortgaged Properties are valid and enforceable junior second priority mortgage Liens liens on the respective Mortgaged Properties, free and clear of all defects and encumbrances except encumbrances described in clauses (i) through (vii) of subparagraph (i) above Permitted Encumbrances, and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Trustee and shall include, as appropriate, to the extent available at commercially reasonably rates, an endorsement for future advances and for any and all other matters that the Trustee Collateral Agent may reasonably request, shall not include an exception for mechanics’ liens or creditors’ rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Trustee Collateral Agent may reasonably request;
(iii) surveys, in form and substance reasonably satisfactory to the TrusteeCollateral Agent, of each Mortgaged Property designated as a “Surveyed Property” on Annex B hereto, dated a recent date acceptable to the Trustee Collateral Agent and certified in a manner reasonably satisfactory to the Trustee Collateral Agent by a licensed professional surveyor reasonably satisfactory to the Trustee; it being understood that any surveys delivered in connection with requirements of the Credit Agreement shall be satisfactory to the extent such surveys shall be acceptable by the title insurance company to issue the coverage required pursuant to clause (ii) aboveCollateral Agent;
(iv) duly authorized, fully executed, acknowledged and delivered subordination, nondisturbance and attornment agreements, assignment of leases, landlord consents, tenant estoppel certificates and such other documents relating to the Mortgages that the Trustee Collateral Agent may reasonably request, it being understood that the foregoing shall be required to the extent the same was delivered in connection with the requirements in the Credit Agreement;
(v) proper fixture filings under the UCC on Form UCC-1 or the equivalent fully executed for filing under the UCC in the appropriate jurisdiction in which the Mortgaged Properties are located, desirable to perfect the security interests purported to be created by the Mortgage or Amended and Restated Mortgages in favor of the Trustee Collateral Agent for the benefit benefits of the Notes Secured Creditorsholders of the Notes;
(vi) to the extent necessary in order to perfect the security interest in that portion of the Collateral constituting deposit accounts within the meaning of Section 9-102(a)(29) of the UCC, deposit account control agreements each substantially in the form of Annex M to the Security Agreement (each a “Control Agreement”) and satisfying the control requirement of Section 9-104(a)(2) of the UCC; provided that the Collateral Agent has specifically identified to the Company those deposit accounts required to be governed by a Control Agreement to meet the control requirements of the UCC; and
(vii) the opinions, addressed to the Trustee and the Notes Secured Creditors, of (1) Xxxxxxxx & Xxxxx LLP[ ], special counsel to the Company Company, or other special counsel or in-house counsel, as to the due authorization, execution and delivery of the Amended and Restated Mortgages by the Company, Company or any of the Guarantors and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance reasonably satisfactory to the Trustee; and
(vii) a pledge agreement under the law of the Netherlands providing for the pledge of 65% of the shares of Exide Global Holding Netherlands C.V. to the Trustee for the benefit of the Notes Secured Creditors and an opinion of Netherlands counsel with respect to such pledge agreement, in each case, inform and substance reasonably satisfactory to the TrusteeCollateral Agent.
(b) Within ten Business Days seven days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date any filings with the United States Patent and Trademark Office or the United States Copyright Office or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Trustee, desirable to perfect the security interests purported to be created by the Security Agreement.
(c) Within five days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date, UCC, judgment, tax lien, and Intellectual Property searches in proper forms of UCC-3 amendments or the respective jurisdictions equivalent under revised Article 9 of the organization of the Company, (y) UCC in the respective each applicable jurisdiction where the chief executive offices of the Company are located and (z) in any other jurisdiction in which the Company store or maintain assets valued in excess of $500,000 in the aggregate; provided, however, that with respect to this clause searches will only be conducted at the secretary of state level; provided, however, to the extent such searches reveal Liens on any Collateral, other than Permitted Liens and other Liens expressly permitted under this Indenture, the Company shall use its reasonable best efforts to release such Liens filed as soon as reasonably practicablepracticable in the jurisdiction of incorporation of the Company and each Guarantor, desirable to perfect the security interests purported to be created by the U.S. Security Agreement in favor of the Collateral Agent for the benefits of the holders of the Notes.
Appears in 1 contract
Samples: Indenture (Webcraft LLC)
Post Closing Action Related to Collateral. Notwithstanding anything to the contrary contained in this Agreement, the Indenture or the Security Documents, the parties hereto acknowledge and agree that the Company and the relevant Subsidiary Guarantor shall be required to take the following actions as promptly as reasonably practicable, and in any event
(a) within 90 Within 45 days after the Issue Date with respect to paragraphs (i),(ii),(iii),(iv),(v) and (vii) below and within 120 days after the Issue Date with respect to paragraphs (vi) belowDate:
(i) fully executed counterparts of Mortgages, Mortgages or Amended and Restated Mortgages as appropriate which Mortgages or Amended and Restated Mortgages, as the case may be, (1) shall cover the Mortgaged Property owned or leased by the Company or Subsidiary any of its Guarantors, as are designated on Annex A hereto, together with evidence that counterparts of the MortgagesMortgages or Amended and Restated Mortgages as appropriate, have been delivered to the title insurance company insuring the Lien of such Mortgages or Amended and Restated Mortgages, as the case may be, for recording in all places to the extent necessary or, in the reasonable opinion of the TrusteeCollateral Agent, desirable to effectively create a valid and enforceable juniorsecond-priority mortgage Lien on each Mortgaged Property in favor of the Trustee Collateral Agent for the benefit of the Notes Secured Creditors, Creditors securing the Obligations obligations under this Indenture, the Notes and the Security Documents (provided that in jurisdictions that impose mortgage recording taxes, such Mortgages or Amended and Restated Mortgages shall not secure indebtedness in an amount exceeding 100% of the fair market value of such Real EstateProperty, as reasonably determined, in good faith, by the Company and reasonably acceptable to the Trustee)Collateral Agent, subject to (i) those Liens, created by the Security Documents, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property and found reasonably acceptable by the TrusteeCollateral Agent, (iii) as to any particular Real Estate Mortgaged Property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, or the Lien lien or hypothec held by the TrusteeCollateral Agent, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, and (vi) such other similar items as the Trustee Collateral Agent may consent to (such consent not to be unreasonably withheld) (the liens described in clauses (i) through (v) of this sentence, collectively, the “Permitted Encumbrances”), (vii) Permitted Exceptions and (viii) the PBGC Liens;
(ii) with respect to each Mortgage intended to encumber a Mortgaged Property, a policy of title insurance (or commitment to issue such a policy having the effect of a policy) or with respect to each Amended and Restated Mortgage intended to encumber a Mortgaged Property, an endorsement of an existing policy of title insurance, insuring (or committing to insure) the Lien of such Mortgage or Amended and Restated Mortgage as a valid and enforceable second-priority mortgage Lien on the Mortgaged Properties described therein, in an amount not less than 100% of the fair market value of such Mortgaged Property as reasonably determined, in good faith, by the Company and reasonably acceptable to the TrusteeCollateral Agent, (such policies collectively, the “the Mortgage Policies”) issued by such title insurers, which reasonably assures the Trustee Collateral Agent that the Mortgages or Amended and Restated Mortgages, as the case may be, on such Mortgaged Properties are valid and enforceable junior second priority mortgage Liens liens on the respective Mortgaged Properties, free and clear of all defects and encumbrances except encumbrances described in clauses (i) through (vii) of subparagraph (i) above Permitted Encumbrances, and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Trustee and shall include, as appropriate, to the extent available at commercially reasonably rates, an endorsement for future advances and for any and all other matters that the Trustee Collateral Agent may reasonably request, shall not include an exception for mechanics’ liens or creditors’ rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Trustee Collateral Agent may reasonably request;
(iii) surveys, in form and substance reasonably satisfactory to the TrusteeCollateral Agent, of each Mortgaged Property designated as a “Surveyed Property” on Annex B hereto, dated a recent date acceptable to the Trustee Collateral Agent and certified in a manner reasonably satisfactory to the Trustee Collateral Agent by a licensed professional surveyor reasonably satisfactory to the Trustee; it being understood that any surveys delivered in connection with requirements of the Credit Agreement shall be satisfactory to the extent such surveys shall be acceptable by the title insurance company to issue the coverage required pursuant to clause (ii) aboveCollateral Agent;
(iv) duly authorized, fully executed, acknowledged and delivered subordination, nondisturbance and attornment agreements, assignment of leases, landlord consents, tenant estoppel certificates and such other documents relating to the Mortgages that the Trustee Collateral Agent may reasonably request, it being understood that the foregoing shall be required to the extent the same was delivered in connection with the requirements in the Credit Agreement;
(v) proper fixture filings under the UCC on Form UCC-1 or the equivalent fully executed for filing under the UCC in the appropriate jurisdiction in which the Mortgaged Properties are located, desirable to perfect the security interests purported to be created by the Mortgage or Amended and Restated Mortgages in favor of the Trustee Collateral Agent for the benefit benefits of the Notes Secured Creditorsholders of the Notes;
(vi) to the extent necessary in order to perfect the security interest in that portion of the Collateral constituting deposit accounts within the meaning of Section 9-102(a)(29) of the UCC, deposit account control agreements each substantially in the form of Annex M to the Security Agreement (each a “Control Agreement”) and satisfying the control requirement of Section 9-104(a)(2) of the UCC; provided that the Collateral Agent has specifically identified to the Company those deposit accounts required to be governed by a Control Agreement to meet the control requirements of the UCC; and
(vii) the opinions, addressed to the Trustee and the Notes Secured Creditors, of (1) Xxxxxxxx & Xxxxx LLP, special counsel to the Company or other special counsel or in-house counsel, as to the due authorization, execution and delivery of the Amended and Restated Mortgages by the Company, Company or any of the Guarantors and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance reasonably satisfactory to the Trustee; and
(vii) a pledge agreement under the law of the Netherlands providing for the pledge of 65% of the shares of Exide Global Holding Netherlands C.V. to the Trustee for the benefit of the Notes Secured Creditors and an opinion of Netherlands counsel with respect to such pledge agreement, in each case, inform and substance reasonably satisfactory to the TrusteeCollateral Agent.
(b) Within ten Business Days seven days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date any filings with the United States Patent and Trademark Office or the United States Copyright Office or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Trustee, desirable to perfect the security interests purported to be created by the Security Agreement.
(c) Within five days after the Issue Date, the Trustee shall have received to the extent not received on the Issue Date, UCC, judgment, tax lien, and Intellectual Property searches in proper forms of UCC-3 amendments or the respective jurisdictions equivalent under revised Article 9 of the organization of the Company, (y) UCC in the respective each applicable jurisdiction where the chief executive offices of the Company are located and (z) in any other jurisdiction in which the Company store or maintain assets valued in excess of $500,000 in the aggregate; provided, however, that with respect to this clause searches will only be conducted at the secretary of state level; provided, however, to the extent such searches reveal Liens on any Collateral, other than Permitted Liens and other Liens expressly permitted under this Indenture, the Company shall use its reasonable best efforts to release such Liens filed as soon as reasonably practicablepracticable in the jurisdiction of incorporation of the Company and each Guarantor, desirable to perfect the security interests purported to be created by the Security Agreement in favor of the Collateral Agent for the benefits of the holders of the Notes.
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Samples: Indenture (Webcraft LLC)
