Security Covenants. During the Security Period, Company shall, and shall cause each of the Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired after the date hereof), including on any and all assets of the Company and each of the Subsidiaries, whether now owned or hereafter acquired. (i) Without limiting the generality of the foregoing, in the event that the Company or any of the Subsidiaries shall, during the Security Period, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, (A) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A), and (C) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested. (ii) During the Security Period, (A) the Company shall, and shall cause each of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) the Company shall or shall cause each of the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents. (iii) Concurrently with the acquisition by the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent. (iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds. (v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Sonterra Resources, Inc.), Securities Purchase Agreement (Sonterra Resources, Inc.)
Security Covenants. During From the Security Perioddate of this Agreement until the first date following the Closing Date on which the Note is no longer outstanding, Company shall, and shall cause each of the its Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired after the date hereof), including on any and all assets of the Company and each of the its Subsidiaries, whether now owned or hereafter acquired.
(i) Without limiting the generality of the foregoing, in the event that the Company or any of the its Subsidiaries shall, during at any time from the Security Perioddate of this Agreement until the first date following the Closing Date on which the Note is no longer outstanding, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, (A) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers Buyer on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A), and (C) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During From the Security Perioddate of this Agreement until the first date following the Closing Date on which the Note is no longer outstanding, (A) the Company shall, and shall cause each of the its Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the its Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and BuyersBuyer, a first priority Lien on all Capital Stock capital stock or other equity securities of each of the its Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) in the event that any additional capital stock or other equity securities shall be issued by any of its Subsidiaries, the Company shall or shall cause each of the its Subsidiaries to, concurrently with such issuance, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
. As used in this Agreement, “Capital Stock” means any and all shares, interests, participations or other equivalents (iiihowever designated) Concurrently with the acquisition by the Company of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agentforegoing.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gulf Western Petroleum Corp)
Security Covenants. During the Security Period, the Company shall, and the Company shall cause each of the Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such any Buyer or the Bridge Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Bridge Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Bridge Collateral Agent for the benefit of such Buyer the Buyers on the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired after the date hereof), including on any and all assets of the Company and each of the Subsidiaries, whether now owned or hereafter acquired.
. For purposes hereof, “Permitted Lien” means: (i) Without limiting Liens created by the generality Bridge Security Documents; (ii) Liens for taxes or other governmental charges not at the time due and payable, or which are being contested in good faith by appropriate proceedings diligently prosecuted, so long as foreclosure, distraint, sale or other similar proceedings have not been initiated, and in each case for which the Company and the Subsidiaries maintain adequate reserves in accordance with GAAP in respect of such taxes and charges; (iii) Liens arising in the ordinary course of business in favor of carriers, warehousemen, mechanics and materialmen, or other similar Liens imposed by law, which remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the foregoingproperty subject thereto, and in each case for which adequate reserves in accordance with GAAP are being maintained; (iv) Liens arising in the event ordinary course of business in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA); (v) attachments, appeal bonds (and cash collateral securing such bonds), judgments and other similar Liens, for sums not exceeding $250,000 in the aggregate for the Company and the Subsidiaries, arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed; (vi) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising in the ordinary course of business and not materially detracting from the value of the property subject thereto and not interfering in any material respect with the ordinary conduct of the business of the Company or any of the Subsidiaries; (vii) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board of Governors of the U.S. Federal Reserve System and that no such deposit account is intended by the Company or any of the Subsidiaries shallto provide collateral to the depository institution; (viii) Liens securing Capital Lease Obligations permitted under Section 6(f)(ii), during provided that such Liens attach only to the Security Periodfixed assets financed by such Capital Lease Obligations and that such Liens attach concurrently with, acquire or form any new Subsidiary within ninety (90) days, after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, thereof; (Aix) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) Liens granted in favor of the Collateral Agent “secured party” for the benefit of the Collateral Agent and Existing Senior Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable pursuant to the Collateral Agent, as may be required or requested by Existing Senior Purchase Agreement and the Collateral Agent in connection with transactions related thereto; (x) the actions contemplated by the preceding clause Diversity Security Interest (A), and (C) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents but only for so long as the Collateral Agent shall have required or requested.
(ii) During the Security Period, (A) the Company shall, and shall cause each of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such SubsidiaryDiversity Note remains outstanding); and (Bxi) Liens consisting of cash collateral securing the Company shall or shall cause each of the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank Company’s and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by the Company or any of the Subsidiaries’ reimbursement obligations, under letters of credit permitted under Section 6(f)(vii), provided that the aggregate amount of cash collateral securing such Indebtedness does not exceed the undrawn face amount outstanding at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agentone time.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Security Covenants. During From the date of this Agreement until the first date following the Final Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, the Company shall, and shall cause each of the its Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such a Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on in the Collateral (as each term is defined in the Security Agreement). Immediately upon creation or acquisition of any Subsidiary, and including Collateral acquired after the date hereof), including on any and all assets Company shall immediately pledge or cause to be pledged to the Buyers the capital stock or other equity securities of such new Subsidiary in accordance with the terms of the Company and each Subsidiary Pledge Agreement (and to the extent the Company has not previously executed and delivered the Company and Subsidiary Pledge Agreement to the Collateral Agent, the Company shall execute and deliver the Company and Subsidiary Pledge Agreement to the Collateral Agent immediately upon creation of a Subsidiary, pursuant to which the Company shall pledge its interest in such Subsidiary to the Collateral Agent), and cause such new Subsidiary to enter into a Subsidiary Guaranty and the Security Agreement and such other Security Documents as necessary to grant to the Buyers a security interest in, and lien on, substantially all of the Subsidiariesassets of such new Subsidiary, whether now owned or hereafter acquiredand comply with the terms thereof.
(i) Without limiting the generality of the foregoing, in the event that the Company or any of the its Subsidiaries shall, during at any time from the date of this Agreement until the first date following the Final Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, (A) to executeexecute a Subsidiary Guaranty and the Security Agreement, or a joinder thereto, and thereafter perform its obligations under, the Security Agreement Subsidiary Guaranty and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A)Agreement, and (CB) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During From the date of this Agreement until the first date following the Final Closing Date on which the Notes and Warrants are no longer outstanding and the Security Period, (A) the Company shall, and shall cause each of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) the Company shall or shall cause each of the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Periodterminated, the Company shall, and shall cause each of the its Subsidiaries to, (A) refrain from engaging to any substantial extent in any business other than the ownership a business related to Internet transactions involving E-Commerce, advertising and operation of oil, gas Website design and other hydrocarbon drilling, exploration licensing and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses business reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Samples: Securities Purchase Agreement (Kaching Kaching, Inc.)
Security Covenants. During From the date of this Agreement until the first date following the Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, the Company shall, and shall cause each of the its Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such a Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on in the Collateral (as each term is defined in the Security Agreement). Immediately upon creation of any Subsidiary, and including Collateral acquired after the date hereof), including on any and all assets Company shall immediately pledge or cause to be pledged to the Buyers the capital stock or other equity securities of such new Subsidiary in accordance with the terms of the Company and each Subsidiary Pledge Agreement (and to the extent the Company has not previously executed and delivered the Company and Subsidiary Pledge Agreement to the Collateral Agent, the Company shall execute and deliver the Company and Subsidiary Pledge Agreement to the Collateral Agent immediately upon creation of a Subsidiary, pursuant to which the Company shall pledge its interest in such Subsidiary to the Collateral Agent), and cause such new Subsidiary to enter into a Subsidiary Guaranty and the Security Agreement and such other Security Documents as necessary to grant to the Buyers a security interest in, and lien on, substantially all of the Subsidiariesassets of such new Subsidiary, whether now owned or hereafter acquiredand comply with the terms thereof.
(i) Without limiting the generality of the foregoing, in the event that the Company or any of the its Subsidiaries shall, during at any time from the date of this Agreement until the first date following the Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, (A) to executeexecute a Subsidiary Guaranty and the Security Agreement, or a joinder thereto, and thereafter perform its obligations under, the Security Agreement Subsidiary Guaranty and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A)Agreement, and (CB) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During From the date of this Agreement until the first date following the Closing Date on which the Notes and Warrants are no longer outstanding and the Security Period, (A) the Company shall, and shall cause each of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) the Company shall or shall cause each of the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Periodterminated, the Company shall, and shall cause each of the its Subsidiaries to, (A) refrain from engaging to any substantial extent in any business other than the ownership a business related to Internet transactions involving E-Commerce, advertising and operation of oil, gas Website design and other hydrocarbon drilling, exploration licensing and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses business reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Samples: Securities Purchase Agreement (Duke Mining Company, Inc.)
Security Covenants. During the Security Period, Company RCGI shall, and RCGI shall cause each of the Included Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired after the date hereof), including on any and all assets of the Company RCGI and each of the Included Subsidiaries, whether now owned or hereafter acquired.
(i) Without limiting the generality of the foregoing, in the event that the Company RCGI or any of the Included Subsidiaries shall, at any time during the Security Period, acquire or form any new Included Subsidiary after the date hereof, the Company RCGI shall, or shall cause the respective Included Subsidiary to cause such new Subsidiary (which shall be an Included Subsidiary), upon such acquisition or concurrently with such formation, as applicable, (A) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Included Subsidiary) ), as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers Buyer on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A), and (C) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have reasonably required or requested.
(ii) During the Security Period, (A) the Company RCGI shall, and RCGI shall cause each of the Included Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and BuyersBuyer, a first priority Lien on all Capital Stock or other equity securities of each of the Included Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) the Company shall RCGI shall, or shall cause each of the Included Subsidiaries to, to deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
. As used in this Agreement, "Capital Stock" means any and all shares, interests, participations or other equivalents (iiihowever designated) Concurrently with the acquisition by the Company of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agentforegoing.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Samples: Securities Exchange and Additional Note Purchase Agreement (River Capital Group, Inc.)
Security Covenants. During the Security Reporting Period, the Company shall, and the Company shall cause each of the Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such any Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent security interest for the benefit of such Buyer on the Buyers in the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired that may be substituted for the Collateral existing upon the execution of this Agreement or after the date hereof), including on subject to the Intercreditor Agreement. For purposes hereof, “Permitted Lien” means: (i) Liens created by the Mortgages; (ii) Liens for taxes or other governmental charges not at the time due and payable, or which are being contested in good faith by appropriate proceedings diligently prosecuted, so long as foreclosure, distraint, sale or other similar proceedings have not been initiated, and in each case for which the Company and the Subsidiaries maintain adequate reserves in accordance with GAAP in respect of such taxes and charges; (iii) Liens arising in the ordinary course of business in favor of carriers, warehousemen, mechanics and materialmen, or other similar Liens imposed by law, which remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto, and in each case for which adequate reserves in accordance with GAAP are being maintained; (iv) Liens arising in the ordinary course of business in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA); (v) attachments, appeal bonds (and cash collateral securing such bonds), judgments and other similar Liens, for sums not exceeding $250,000 in the aggregate for the Company and the Subsidiaries, arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed; (vi) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising in the ordinary course of business and not materially detracting from the value of the property subject thereto and not interfering in any and all assets material respect with the ordinary conduct of the business of the Company and each or any of the Subsidiaries; (vii) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, whether now owned rights of set-off or hereafter acquired.
(i) Without limiting similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the generality depositor in excess of those set forth by regulations promulgated by the Board of Governors of the foregoing, in the event U.S. Federal Reserve System and that no such deposit account is intended by the Company or any of the Subsidiaries shall, during to provide collateral to the Security Period, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, depository institution; (Aviii) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) Liens granted in favor of the Collateral Agent “secured party” for the benefit of the Collateral Agent and Existing Senior Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable pursuant to the Collateral Agent, as may be required or requested by Existing Senior Purchase Agreement and the Collateral Agent documents and instruments expressly contemplated thereby and entered into in connection with the actions contemplated by the preceding clause therewith; (A), and (Cix) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During the Security Period, (A) the Company shall, and shall cause each Liens granted in favor of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, “secured party” for the benefit of the Collateral Agent Bridge Buyers pursuant to the Bridge Purchase Agreement and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiarydocuments and instruments expressly contemplated thereby and entered into in connection therewith; (x) the Diversity Security Interest (but only for so long as the Diversity Note remains outstanding); and (Bxi) Liens consisting of cash collateral securing the Company shall or shall cause each Company’s and the Subsidiaries’ reimbursement obligations under letters of credit issued for the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by account of the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) Subsidiaries in the case ordinary course of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or their business for the benefit of, any third-party owner purpose of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account securing performance obligations of the Company or one any other of the Subsidiaries which or for the purpose of satisfying federal, state and/or local legal requirements for owning and operating oil and gas properties, so long as the aggregate face amount of such letters of credit does not contain Third-Party Production Proceeds or exceed $500,000 at any other Production Proceeds one time; provided that are subject to an ownership interest or other claim by the aggregate amount of cash collateral securing such Indebtedness does not exceed the undrawn face amount outstanding at any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceedsone time.
(v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Security Covenants. During the Security Reporting Period, the Company shall, and the Company shall cause each of the Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such any Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent security interest for the benefit of such Buyer on the Buyers in the Collateral (as each term is defined in the Security Agreement, and including Collateral acquired that may be substituted for the Collateral existing upon the execution of this Agreement or after the date hereof), including on subject to the Intercreditor Agreement Amendment. For purposes hereof, “Permitted Lien” means: (i) Liens created by the Mortgage Amendments; (ii) Liens for taxes or other governmental charges not at the time due and payable, or which are being contested in good faith by appropriate proceedings diligently prosecuted, so long as foreclosure, distraint, sale or other similar proceedings have not been initiated, and in each case for which the Company and the Subsidiaries maintain adequate reserves in accordance with GAAP in respect of such taxes and charges; (iii) Liens arising in the ordinary course of business in favor of carriers, warehousemen, mechanics and materialmen, or other similar Liens imposed by law, which remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto, and in each case for which adequate reserves in accordance with GAAP are being maintained; (iv) Liens arising in the ordinary course of business in connection with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA); (v) attachments, appeal bonds (and cash collateral securing such bonds), judgments and other similar Liens, for sums not exceeding $250,000 in the aggregate for the Company and the Subsidiaries, arising in connection with court proceedings, provided that the execution or other enforcement of such Liens is effectively stayed; (vi) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising in the ordinary course of business and not materially detracting from the value of the property subject thereto and not interfering in any and all assets material respect with the ordinary conduct of the business of the Company and each or any of the Subsidiaries; (vii) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, whether now owned rights of set-off or hereafter acquired.
(i) Without limiting similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the generality depositor in excess of those set forth by regulations promulgated by the Board of Governors of the foregoing, in the event U.S. Federal Reserve System and that no such deposit account is intended by the Company or any of the Subsidiaries shall, during to provide collateral to the Security Period, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, depository institution; (Aviii) to execute, and thereafter perform its obligations under, the Security Agreement and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) Liens granted in favor of the Collateral Agent “secured party” for the benefit of the Collateral Agent and Existing Senior Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable pursuant to the Collateral Agent, as may be required or requested by Existing Senior Purchase Agreement and the Collateral Agent documents and instruments expressly contemplated thereby and entered into in connection with the actions contemplated by the preceding clause therewith; (A), and (Cix) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During the Security Period, (A) the Company shall, and shall cause each Liens granted in favor of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, “secured party” for the benefit of the Collateral Agent Bridge Buyers pursuant to the Bridge Purchase Agreement and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiarydocuments and instruments expressly contemplated thereby and entered into in connection therewith; (x) the Diversity Security Interest (but only for so long as the Diversity Note remains outstanding); and (Bxi) Liens consisting of cash collateral securing the Company shall or shall cause each Company’s and the Subsidiaries’ reimbursement obligations under letters of credit issued for the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by account of the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) Subsidiaries in the case ordinary course of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or their business for the benefit of, any third-party owner purpose of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account securing performance obligations of the Company or one any other of the Subsidiaries which or for the purpose of satisfying federal, state and/or local legal requirements for owning and operating oil and gas properties, so long as the aggregate face amount of such letters of credit does not contain Third-Party Production Proceeds or exceed $500,000 at any other Production Proceeds one time; provided that are subject to an ownership interest or other claim by the aggregate amount of cash collateral securing such Indebtedness does not exceed the undrawn face amount outstanding at any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceedsone time.
(v) During the Security Period, the Company shall, and shall cause each of the Subsidiaries to, (A) refrain from engaging to any extent in any business other than the ownership and operation of oil, gas and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
Appears in 1 contract
Security Covenants. During From the date of this Agreement until the first date following the Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, the Company shall, and shall cause each of the its Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as such a Buyer or the Collateral Agent may from time to time request in order to carry out the intent and purposes of this Agreement, the Security Documents and the other Transaction Documents and the transactions contemplated hereby and thereby, including all such actions to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of such Buyer on in the Collateral (as each term is defined in the Security Agreement). Immediately upon creation of any Subsidiary, and including Collateral acquired after the date hereof), including on any and all assets Company shall immediately pledge or cause to be pledged to the Buyers the capital stock or other equity securities of such new Subsidiary in accordance with the terms of the Company and each Subsidiary Pledge Agreement, and cause such new Subsidiary to enter into the Subsidiary Guaranty and the Security Agreement and such other Security Documents as necessary to grant to the Buyers a security interest in, and lien on, substantially all of the Subsidiariesassets of such new Subsidiary, whether now owned or hereafter acquiredand comply with the terms thereof.
(i) Without limiting the generality of the foregoing, in the event that the Company or any of the its Subsidiaries shall, during at any time from the date of this Agreement until the first date following the Closing Date on which the Notes are no longer outstanding and the Security PeriodAgreement has terminated, acquire or form any new Subsidiary after the date hereof, the Company shall, or shall cause the respective Subsidiary to cause such new Subsidiary, upon such acquisition or concurrently with such formation, as applicable, (A) to executeexecute a joinder to the Subsidiary Guaranty and the Security Agreement, and thereafter perform its obligations under, the Security Agreement Subsidiary Guaranty and the Guaranty and to take such other action (including authorizing the filing of such UCC financing statements and delivering certificates in respect of the equity securities of such Subsidiary) as shall be necessary or appropriate to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Collateral Agent and Buyers on all assets, both real and personal, in which such new Subsidiary has or may thereafter acquire any interest, (B) to execute such other Security Documents, in form and content acceptable to the Collateral Agent, as may be required or requested by the Collateral Agent in connection with the actions contemplated by the preceding clause (A)Agreement, and (CB) to deliver such proof of corporate (or comparable) action, incumbency of officers, opinions of counsel and other documents as the Collateral Agent shall have required or requested.
(ii) During From the date of this Agreement until the first date following the Closing Date on which the Notes are no longer outstanding and the Security Period, (A) the Company shall, and shall cause each of the Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of the Subsidiaries is a wholly-owned Subsidiary, and that the Collateral Agent shall have, for the benefit of the Collateral Agent and Buyers, a first priority Lien on all Capital Stock or other equity securities of each of the Subsidiaries concurrently with acquisition or formation of such Subsidiary; and (B) the Company shall or shall cause each of the Subsidiaries to, deliver promptly to the Collateral Agent, to the extent required by the applicable Security Documents, the certificates evidencing such securities, accompanied by undated powers executed in blank and to take such other action as the Collateral Agent shall request to perfect the security interest created therein pursuant to such Security Documents.
(iii) Concurrently with the acquisition by the Company or any of the Subsidiaries, at any time during the Security Period, of any real estate or real property leasehold interests, the Company shall deliver or cause to be delivered to the Collateral Agent, with respect to such real estate, (A) a mortgage or deed of trust, as applicable, in form and substance satisfactory to the Collateral Agent, executed by the title holder thereof, (B) an ALTA lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Collateral Agent in form and substance and in amounts reasonably satisfactory to the Collateral Agent ensuring the Collateral Agent’s first priority Lien on such real estate, free and clear of all defects, encumbrances and Liens except Permitted Liens; (C) a current ALTA survey, certified to the Collateral Agent by a licensed surveyor, in form and substance satisfactory to the Collateral Agent, (D) a certificate, in form and substance acceptable to the Collateral Agent, to the Collateral Agent from a national certification agency acceptable to the Collateral Agent, certifying that such real estate is not located in a special flood hazard area, and (E) in the case of real estate that consists of a leasehold estate, such estoppel letters, consents and waivers from the landlords and non-disturbance agreements from any holders of mortgages or deeds of trust on such real estate as may be requested by the Collateral Agent, all of which shall be in form and substance satisfactory to the Collateral Agent.
(iv) With respect to any Production Proceeds (as defined in the Mortgages) received by Company or any of the Subsidiaries during the Security Period which constitute (A) payment of oil or gas proceeds received on account of, or for the benefit of, any third-party owner of oil or gas interests or (B) taxes, charges, costs and expenses that are required to be paid on account of such Production Proceeds on account of, or for the benefit of, any third-party owner of oil or gas interests (the items in clauses (A) and (B), the “Third-Party Production Proceeds”), the Company shall, and shall cause the Subsidiaries to, segregate that portion of Production Proceeds received on any day constituting Third-Party Production Proceeds into a segregated Deposit Account (as defined in the Security Agreement) covered by an Account Control Agreement which only has Third-Party Production Proceeds on deposit therein at any time. The Company shall, and shall cause the Subsidiaries to, deposit all Production Proceeds not constituting Third-Party Production Proceeds into a Deposit Account of the Company or one of the Subsidiaries which does not contain Third-Party Production Proceeds or any other Production Proceeds that are subject to an ownership interest or other claim by any third-party. The Company shall provide written notice to the holders of the Notes as to which Deposit Account is segregated for Third-Party Production Proceeds, and shall not change the Deposit Account segregated for Third-Party Production Proceeds without prior written consent of each holder of the Notes. The Company shall, and shall cause the Subsidiaries to, receive, collect and enforce their rights to receive payment of Production Proceeds, enforcing liens and security interests in respect thereof and protecting their interests in and to all Production Proceeds.
(v) During the Security Periodterminated, the Company shall, and shall cause each of the its Subsidiaries to, (A) refrain from engaging to any substantial extent in any business other than the ownership production of cellulosic ethanol and operation of oil, gas biodiesel and other hydrocarbon drilling, exploration and development rights, concessions, working interests and participation interests and hydrocarbon transportation facilities and businesses business reasonably related thereto or in furtherance thereof, and (B) preserve, renew and keep in full force and effect their respective material rights, privileges and franchises necessary or desirable in the normal conduct of their business.
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Samples: Securities Purchase Agreement (Evolution Resources, Inc.)
