Security Interests; Collateral. (a) The Collateral Agreements are effective to create in favor of the Pari Passu Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, in each case subject to the terms of the Intercreditor Agreement, (i) when financing statements in appropriate form are filed in the appropriate filing office (as required by law to perfect the Liens contemplated herein), the Pari Passu Collateral Agent will obtain a valid and perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of the Collateral in which a security interest may be perfected by the filing of a financing statement under the applicable Uniform Commercial Code, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements, and (ii) when such Collateral (to the extent it constitutes a certificated security or an instrument under the applicable Uniform Commercial Code) is delivered to such Collateral Agent, such Security Agreement shall create a fully perfected first priority Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements. (b) The original Ship Mortgages dated as of October 25, 2012 (the “Original Ship Mortgages”), as amended in connection with the Transactions pursuant to, in the case of each Panamanian Flagged Vessel, an amendment No. 1 to First Naval Mortgage (each, a “Panamanian Mortgage Amendment”) and, in the case of each Bahamian Flagged Vessel (other than the Tungsten Explorer), an amendment No. 1 to the Deed of Covenants associated with the Original Ship Mortgage (each, an “Amendment to Deed of Covenants”, and together with the Panamanian Mortgage Amendments, collectively, the “Amendments”; the Original Ship Mortgages, as amended by the Amendments, and the ship mortgage to be executed when the Tungsten Explorer is delivered, are collectively called the “Specified Ship Mortgages”), are effective to grant a legal and valid mortgage Lien in favor of the Pari Passu Collateral Agent on all of the Company’s and/or the applicable Guarantor’s right, title and interest in (A) the Topaz Driller, the Emerald Driller, the Sapphire Driller and the Aquamarine Driller (collectively, the “Panamanian Flagged Vessels”) and (B) the Platinum Explorer, the Titanium Explorer and, upon its recording on its delivery date, the Tungsten Explorer (collectively, the “Bahamian Flagged Vessels” and the Bahamian Flagged Vessels together with the Panamanian Flagged Vessels, the “Specified Vessels”) under and pursuant to the laws of the Republic of Panama and the Commonwealth of the Bahamas, as applicable, and a foreign preferred mortgage thereon under 46 USC Chapter 313. When the Panamanian Mortgage Amendments are duly provisionally recorded in the proper public registry in the case of the Panamanian Flagged Vessels and the Amendments to Deed of Covenants are executed and delivered in the case of the Bahamian Flagged Vessels (and in the case of the Tungsten Explorer when the Ship Mortgage covering it is duly recorded), the recording fees and taxes in respect thereof are paid, and compliance is otherwise had with the formal requirements of local law applicable thereto, each Ship Mortgage shall constitute a valid, perfected and enforceable first preferred mortgage on the Specified Vessels in favor of the Pari Passu Collateral Agent for the ratable benefit of the Secured Parties (as defined in the Specified Ship Mortgages), securing the “Secured Obligations” as defined in the Specified Ship Mortgages, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). (c) Each of the Tungsten Explorer Construction Contract and the Tungsten Explorer Construction Assignment delivered to the Administrative Agent by the Company is a true, correct and complete copy thereof with all amendments, modifications and supplements and attachments, schedules and exhibits through the Closing Date. The Tungsten Explorer Construction Contract is in full force and effect, and to the knowledge of the Company and the Parent, there are no currently existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under the Tungsten Explorer Construction Contract. The Company reasonably expects the Tungsten Explorer to be delivered to the Company or a Guarantor in accordance with the Tungsten Explorer Construction Contract on or prior to June 30, 2013. The Tungsten Explorer Construction Assignment is in full force and effect and creates in favor of the Pari Passu Collateral Agent for the benefit of the holders of all Pari Passu Obligations, including, as of the Closing Date, the Collateral Agent and the other Secured Parties, a perfected security interest in the Tungsten Explorer Construction Contract. The assignment by Tungsten Explorer Company of the Assigned Rights (as defined in the Tungsten Explorer Construction Assignment) to the Pari Passu Collateral Agent pursuant to the Tungsten Explorer Construction Assignment is duly perfected and enforceable against DSME, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). The assignment of proceeds under the Tungsten Explorer Refund Guarantee is duly perfected and enforceable against the refund guarantor, Korea Finance Corporation, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and a true, correct and complete copy thereof with all amendments, modifications and supplements through the Closing Date has been delivered to the Administrative Agent. (d) Each of the Drilling Contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Drilling Contract. (e) The Collateral Agent has control over, and a duly perfected security interest in, the Earnings Account. (f) Upon delivery to the Pari Passu Collateral Agent of the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement in the case of all Vessels other than the Tungsten Explorer and, in the case of the Tungsten Explorer, upon delivery of an Earnings Assignment of each relevant Guarantor and an Insurance Assignment of each relevant Guarantor, assignments of Internal Charter and other internal contracts respecting the use or operation of the Tungsten Explorer, together with the consent of the relevant Internal Charterer under each such Internal Charter or other internal contract described in the Perfection Certificate dated as of the Closing Date, the security interest granted under each such assignment is or will be duly perfected, and each such assignment is or will be enforceable against the relevant Internal Charterer. Each of the Internal Charters and other internal contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any such Internal Charter or other such internal contract. (g) All of the obligations and liabilities of the Borrowers and the Guarantors under the Collateral Agreements are in full force and effect as of the date hereof. (h) After giving effect to the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement, the obligations secured pursuant to the Collateral Agreements shall include the obligations of the Borrowers and the Guarantors under the Notes and Indenture. (i) Neither the execution nor delivery of any Loan Document nor the advancing of the Loans will, in any way, abrogate, release, or terminate any of the Collateral Agreements or the liabilities and obligations of the Company or the Guarantors thereunder. (j) All information certified by the Chief Financial Officer of the Parent in the perfection certificate dated as of the Closing Date and delivered by such officer on behalf of the Borrowers and the Guarantors (the “Perfection Certificate”) is true and correct as of the Closing Date.
Appears in 1 contract
Security Interests; Collateral. (a) The Collateral Agreements are effective to create in favor of the Pari Passu Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, in each case subject to the terms of the Intercreditor Agreement, (i) when financing statements in appropriate form are filed in the appropriate filing office (as required by law to perfect offices specified in the Liens contemplated herein)Security Agreement, the Pari Passu Collateral Agent will obtain such Security Agreement shall constitute a valid and fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of the Collateral in which a security interest may be perfected by the filing of a financing statement under the applicable Uniform Commercial Code, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements, and (ii) when such Collateral (to the extent it constitutes a certificated security or an instrument under the applicable Uniform Commercial Code) is delivered to such Collateral Agent, such Security Agreement shall create a fully perfected first priority Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements.
(b) The original Ship Mortgages dated as of October 25, 2012 (After the “Original Ship Mortgages”), as amended in connection with the Transactions pursuant to, in the case execution and delivery of each Panamanian Flagged VesselShip Mortgage, an amendment No. 1 to First Naval Mortgage (each, a “Panamanian Mortgage Amendment”) and, in the case of each Bahamian Flagged Vessel (other than the Tungsten Explorer), an amendment No. 1 to the Deed of Covenants associated with the Original Ship Mortgage (each, an “Amendment to Deed of Covenants”, and together with the Panamanian Mortgage Amendments, collectively, the “Amendments”; the Original Ship Mortgages, as amended by the Amendments, and the ship mortgage to will be executed when the Tungsten Explorer is delivered, are collectively called the “Specified Ship Mortgages”), are effective to grant a legal and valid mortgage Lien create in favor of the Pari Passu Collateral Agent on all of the Company’s and/or the applicable Guarantor’s right, title and interest in (A) the Topaz Driller, the Emerald Driller, the Sapphire Driller and the Aquamarine Driller (collectively, the “Panamanian Flagged Vessels”) and (B) the Platinum Explorer, the Titanium Explorer and, upon its recording on its delivery date, the Tungsten Explorer (collectively, the “Bahamian Flagged Vessels” and the Bahamian Flagged Vessels together with the Panamanian Flagged Vessels, the “Specified Vessels”) under and pursuant to the laws of the Republic of Panama and the Commonwealth of the Bahamas, as applicable, and a foreign preferred mortgage thereon under 46 USC Chapter 313. When the Panamanian Mortgage Amendments are duly provisionally recorded in the proper public registry in the case of the Panamanian Flagged Vessels and the Amendments to Deed of Covenants are executed and delivered in the case of the Bahamian Flagged Vessels (and in the case of the Tungsten Explorer when the Ship Mortgage covering it is duly recorded), the recording fees and taxes in respect thereof are paid, and compliance is otherwise had with the formal requirements of local law applicable thereto, each Ship Mortgage shall constitute a valid, perfected and enforceable first preferred mortgage on the Specified Vessels in favor of the Pari Passu Collateral Agent for the ratable benefit of the Secured Parties a legal, valid and enforceable security interest in all Collateral (as defined in such Mortgage) and, when appropriate filings or registrations are made in accordance with the Specified laws of the Vessel’s flag, such Ship Mortgages)Mortgage shall constitute a perfected preferred mortgage Lien on all right, securing title and interest of the “Secured Obligations” as defined applicable Credit Party thereunder in the Specified Ship Mortgagesapplicable Vessel, except that enforceability thereof may be limited by bankruptcyprior and superior in right to any other Person, insolvencyother than Permitted Liens, fraudulent transferand will constitute a “preferred mortgage” within the meaning of Section 31301(6) of Title 46 of the United States Code, reorganizationentitled to the benefits accorded a preferred mortgage on a foreign vessel, moratorium in the case of Vessels not registered under the laws and similar flag of the United States, and in the case of Vessels registered under the laws and flag of general applicability from time the United States, constitutes a “preferred mortgage” within the meaning of Section 31301(6) of Title 46 of the United States Code, entitled to time in effect relating to or affecting creditors’ rights the benefits accorded a preferred mortgage on a registered vessel under the laws and general principles flag of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity)the United States.
(c) Each of the The Tungsten Explorer Construction Contract and the Tungsten Explorer Construction Assignment delivered to the Administrative Agent by the Company is a true, correct and complete copy thereof with all amendments, modifications and supplements and attachments, schedules and exhibits through the Closing Date. The Tungsten Explorer Construction Contract is in full force and effect, and to the knowledge of the Company Borrowers and the Parent, there are no currently existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under the Tungsten Explorer Construction Contract. The Company reasonably expects the Tungsten Explorer to be delivered to the Company or a Guarantor in accordance with the Tungsten Explorer Construction Contract on or prior to June 30, 2013. The Tungsten Explorer Construction Assignment is in full force and effect and creates in favor of the Pari Passu Collateral Agent for the benefit of the holders of all Pari Passu Obligations, including, as of the Closing Date, the Collateral Agent and the other Secured Parties, a perfected security interest in the Tungsten Explorer Construction Contract. The assignment by Tungsten Explorer Company of the Assigned Rights (as defined in the Tungsten Explorer Construction Assignment) to the Pari Passu Collateral Agent pursuant to the Tungsten Explorer Construction Assignment is duly perfected and enforceable against DSME, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). The assignment of proceeds under the Tungsten Explorer Refund Guarantee is duly perfected and enforceable against the refund guarantor, Korea Finance Corporation, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and a true, correct and complete copy thereof with all amendments, modifications and supplements through the Closing Date has been delivered to the Administrative Agent.
(d) Each of the Drilling Contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Drilling Contract.
(e) The Collateral Agent has control over, and a duly perfected security interest in, the Earnings Account.
(f) Upon delivery to the Pari Passu Collateral Agent of the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement in the case of all Vessels other than the Tungsten Explorer and, in the case of the Tungsten Explorer, upon delivery of an Earnings Assignment of each relevant Guarantor and an Insurance Assignment of each relevant Guarantor, assignments of Internal Charter and other internal contracts respecting the use or operation of the Tungsten Explorer, together with the consent of the relevant Internal Charterer under each such Internal Charter or other internal contract described in the Perfection Certificate dated as of the Closing Date, the security interest granted under each such assignment is or will be duly perfected, and each such assignment is or will be enforceable against the relevant Internal Charterer. Each of the Internal Charters and other internal contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any such Internal Charter or other such internal contract.
(g) All of the obligations and liabilities of the Borrowers and the Guarantors under the Collateral Agreements are in full force and effect as of the date hereof.
(h) After giving effect to the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement, the obligations secured pursuant to the Collateral Agreements shall include the obligations of the Borrowers and the Guarantors under the Notes and Indenture.
(i) Neither the execution nor delivery of any Loan Document nor the advancing of the Loans will, in any way, abrogate, release, or terminate any of the Collateral Agreements or the liabilities and obligations of the Company or the Guarantors thereunder.
(j) All information certified by the Chief Financial Officer of the Parent in the perfection certificate dated as of the Closing Date and delivered by such officer on behalf of the Borrowers and the Guarantors (the “Perfection Certificate”) is true and correct as of the Closing Date.
Appears in 1 contract
Security Interests; Collateral. (a) The Collateral Agreements are effective Pursuant to create in favor of the Pari Passu Collateral AgentFinancing Orders, as security for the ratable benefit full and timely payment and performance of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, in each case subject to the terms of the Intercreditor Agreement, (i) when financing statements in appropriate form are filed in the appropriate filing office (as required by law to perfect the Liens contemplated herein), the Pari Passu Collateral Agent will obtain a valid and perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of the Collateral in which a security interest may be perfected by the filing of a financing statement under the applicable Uniform Commercial Code, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements, and (ii) when such Collateral (to the extent it constitutes a certificated security or an instrument under the applicable Uniform Commercial Code) is delivered to such Collateral Agent, such Security Agreement shall create a fully perfected first priority Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements.
(b) The original Ship Mortgages dated as of October 25, 2012 (the “Original Ship Mortgages”), as amended in connection with the Transactions pursuant to, in the case of each Panamanian Flagged Vessel, an amendment No. 1 to First Naval Mortgage (each, a “Panamanian Mortgage Amendment”) and, in the case of each Bahamian Flagged Vessel (other than the Tungsten Explorer), an amendment No. 1 to the Deed of Covenants associated with the Original Ship Mortgage (each, an “Amendment to Deed of Covenants”, and together with the Panamanian Mortgage Amendments, collectively, the “Amendments”; the Original Ship Mortgages, as amended by the Amendments, and the ship mortgage to be executed when the Tungsten Explorer is delivered, are collectively called the “Specified Ship Mortgages”), are effective to grant a legal and valid mortgage Lien in favor of the Pari Passu Collateral Agent on all of the Company’s and/or the applicable Guarantor’s right, title and interest in (A) the Topaz Driller, the Emerald Driller, the Sapphire Driller and the Aquamarine Driller (collectively, the “Panamanian Flagged Vessels”) and (B) the Platinum Explorer, the Titanium Explorer and, upon its recording on its delivery date, the Tungsten Explorer (collectively, the “Bahamian Flagged Vessels” and the Bahamian Flagged Vessels together with the Panamanian Flagged Vessels, the “Specified Vessels”) under and pursuant to the laws of the Republic of Panama and the Commonwealth of the Bahamas, as applicable, and a foreign preferred mortgage thereon under 46 USC Chapter 313. When the Panamanian Mortgage Amendments are duly provisionally recorded in the proper public registry in the case of the Panamanian Flagged Vessels and the Amendments to Deed of Covenants are executed and delivered in the case of the Bahamian Flagged Vessels (and in the case of the Tungsten Explorer when the Ship Mortgage covering it is duly recorded), the recording fees and taxes in respect thereof are paid, and compliance is otherwise had with the formal requirements of local law applicable thereto, each Ship Mortgage shall constitute a valid, perfected and enforceable first preferred mortgage on the Specified Vessels in favor of the Pari Passu Collateral Agent for the ratable benefit of the Secured Parties (as defined in the Specified Ship Mortgages), securing the “Secured Obligations” as defined in the Specified Ship Mortgages, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity).
(c) Each of the Tungsten Explorer Construction Contract and the Tungsten Explorer Construction Assignment delivered to the Administrative Agent by the Company is a true, correct and complete copy thereof with all amendments, modifications and supplements and attachments, schedules and exhibits through the Closing Date. The Tungsten Explorer Construction Contract is in full force and effect, and to the knowledge obligations of the Company and the Parent, there are no currently existing other Debtors hereunder and unwaived and/or uncured defaults or events which with time or notice would become events of default under the Tungsten Explorer Construction Contract. The other Loan Documents, now existing or hereafter arising, the Company reasonably expects the Tungsten Explorer to be delivered and each of its Subsidiaries has granted to the Company or a Guarantor in accordance with the Tungsten Explorer Construction Contract on or prior to June 30, 2013. The Tungsten Explorer Construction Assignment is in full force and effect and creates in favor of the Pari Passu Collateral Post-Petition Agent for the benefit of the holders of all Pari Passu Obligations, including, as of the Closing Date, the Collateral Post-Petition Agent and the other Secured PartiesLenders a valid, a binding, enforceable, duly perfected security interest in the Tungsten Explorer Construction Contract. The assignment by Tungsten Explorer Company of the Assigned Rights (as defined in the Tungsten Explorer Construction Assignment) to the Pari Passu Collateral Agent pursuant to the Tungsten Explorer Construction Assignment is duly perfected and enforceable against DSME, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). The assignment of proceeds under the Tungsten Explorer Refund Guarantee is duly perfected and enforceable against the refund guarantor, Korea Finance Corporation, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and a true, correct and complete copy thereof with all amendments, modifications and supplements through the Closing Date has been delivered to the Administrative Agent.
(d) Each of the Drilling Contracts described in the Perfection Certificate dated as Financing Orders, including avoidance, preference and fraudulent transfer recoveries, subject only to Liens specified in the Financing Orders and the Carve-Out. Without limiting the generality of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Drilling Contract.
(e) The Collateral Agent has control over, and a duly perfected security interest inforegoing, the Earnings Account.
(f) Upon delivery to the Pari Passu Collateral Agent repayment of the Intercreditor Designation Notice, Loans and all other obligations of the Intercreditor Joinder Debtors arising under this Agreement and the Insurance and Earnings Supplement other Loan Documents shall be granted, as set forth in more detail in the Financing Orders, a first administrative priority status and a first priority security interest in and Lien on the Collateral by the Bankruptcy Court pursuant to Section 364(d) of the Bankruptcy Code, with priority and superiority over (i) any and all other Liens and claims against the property of the Debtors or the Collateral existing on the Filing Date, except for Prior Permitted Liens, and (ii) priority claims (including administrative expenses) alleging priority pursuant to Section 503, Section 506(c) or Section 507 of the Bankruptcy Code, heretofore or hereafter arising or incurred in the Chapter 11 Cases or in any superseding case or cases under any chapter of all Vessels the Bankruptcy Code, other than the Tungsten Explorer and, in the case of the Tungsten Explorer, upon Carve-Out. The execution and delivery of this Agreement shall not be construed as an Earnings Assignment of each relevant Guarantor and an Insurance Assignment of each relevant Guarantor, assignments of Internal Charter and other internal contracts respecting acknowledgment by the use Post-Petition Agent or operation of the Tungsten Explorer, together any Lender (or any Pre-Petition Lender) that such party is adequately protected with the consent of the relevant Internal Charterer under each such Internal Charter or other internal contract described in the Perfection Certificate dated as of the Closing Date, the security interest granted under each such assignment is or will be duly perfected, and each such assignment is or will be enforceable against the relevant Internal Charterer. Each of the Internal Charters and other internal contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any such Internal Charter or other such internal contract.
(g) All of the obligations and liabilities of the Borrowers and the Guarantors under the Collateral Agreements are in full force and effect as of the date hereof.
(h) After giving effect respect to the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement, the obligations secured pursuant to the Collateral Agreements shall include the obligations of the Borrowers and the Guarantors under the Notes and Indenture.
(i) Neither the execution nor delivery of any Loan Document nor the advancing of the Loans will, its interests in any way, abrogate, release, or terminate any of the Collateral Agreements or the liabilities and obligations of the Company or the Guarantors thereundercollateral granted to secure Pre-Petition Indebtedness.
(j) All information certified by the Chief Financial Officer of the Parent in the perfection certificate dated as of the Closing Date and delivered by such officer on behalf of the Borrowers and the Guarantors (the “Perfection Certificate”) is true and correct as of the Closing Date.
Appears in 1 contract
Samples: Post Petition Credit Agreement (U S Aggregates Inc)
Security Interests; Collateral. (a) The Collateral Agreements are effective to create in favor of the Pari Passu Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, in each case subject to the terms of the Intercreditor Agreement, (i) when financing statements in appropriate form are filed in the appropriate filing office (as required by law to perfect the Liens contemplated herein), the Pari Passu Collateral Agent will obtain Security Agreement constitutes a valid and fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of the Collateral in which a security interest may be perfected by the filing of a financing statement under the applicable Uniform Commercial Code, in each case prior and superior in right to any other Person (except that it shall rank ranks as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements, and (ii) when such Collateral (to the extent it constitutes a certificated security or an instrument under the applicable Uniform Commercial Code) is delivered to such Collateral Agent, such Security Agreement shall create creates a fully perfected first priority Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateralthe Collateral that has been delivered to the Collateral Agent (to the extent it constitutes a certificated security or an instrument under the applicable Uniform Commercial Code), in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than Permitted Liens having priority under Legal Requirements.
(b) The original Ship Mortgages dated as of October 25, 2012 (the “Original Ship Mortgages”), as amended in connection with the Transactions pursuant to, in the case of each Panamanian Flagged Vessel, an amendment No. 1 to First Naval Mortgage (each, a “Panamanian Mortgage Amendment”) and, in the case of each Bahamian Flagged Vessel (other than the Tungsten Explorer), an amendment No. 1 to the Deed of Covenants associated with the Original Each Ship Mortgage (each, an “Amendment to Deed of Covenants”, and together with the Panamanian Mortgage Amendments, collectively, the “Amendments”; the Original Ship Mortgages, as amended by the Amendments, and the ship mortgage to be executed when the Tungsten Explorer is delivered, are collectively called the “Specified Ship Mortgages”), are effective to grant a legal and valid mortgage Lien create in favor of the Pari Passu Collateral Agent on all of the Company’s and/or the applicable Guarantor’s right, title and interest in (A) the Topaz Driller, the Emerald Driller, the Sapphire Driller and the Aquamarine Driller (collectively, the “Panamanian Flagged Vessels”) and (B) the Platinum Explorer, the Titanium Explorer and, upon its recording on its delivery date, the Tungsten Explorer (collectively, the “Bahamian Flagged Vessels” and the Bahamian Flagged Vessels together with the Panamanian Flagged Vessels, the “Specified Vessels”) under and pursuant to the laws of the Republic of Panama and the Commonwealth of the Bahamas, as applicable, and a foreign preferred mortgage thereon under 46 USC Chapter 313. When the Panamanian Mortgage Amendments are duly provisionally recorded in the proper public registry in the case of the Panamanian Flagged Vessels and the Amendments to Deed of Covenants are executed and delivered in the case of the Bahamian Flagged Vessels (and in the case of the Tungsten Explorer when the Ship Mortgage covering it is duly recorded), the recording fees and taxes in respect thereof are paid, and compliance is otherwise had with the formal requirements of local law applicable thereto, each Ship Mortgage shall constitute a valid, perfected and enforceable first preferred mortgage on the Specified Vessels in favor of the Pari Passu Collateral Agent for the ratable benefit of the Secured Parties a legal, valid and enforceable security interest in all Collateral (as defined in such Mortgage) and constitutes a perfected preferred mortgage Lien on all right, title and interest of the Specified Ship Mortgages), securing the “Secured Obligations” as defined applicable Credit Party thereunder in the Specified Ship Mortgagesapplicable Vessel, except that enforceability thereof may be limited by bankruptcyprior and superior in right to any other Person, insolvencyother than Permitted Liens, fraudulent transferand constitutes a “preferred mortgage” within the meaning of Section 31301(6) of Title 46 of the United States Code, reorganizationentitled to the benefits accorded a preferred mortgage on a foreign vessel, moratorium in the case of Vessels not registered under the laws and similar flag of the United States, and in the case of Vessels registered under the laws and flag of general applicability from time the United States, constitutes a “preferred mortgage” within the meaning of Section 31301(6) of Title 46 of the United States Code, entitled to time in effect relating to or affecting creditors’ rights the benefits accorded a preferred mortgage on a registered vessel under the laws and general principles flag of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity)the United States.
(c) Each of the Tungsten Explorer Construction Contract and the Tungsten Explorer Construction Assignment previously delivered to the Administrative Agent by the Company is a true, correct and complete copy thereof with all amendments, modifications and supplements and attachments, schedules and exhibits through the Closing Repricing Effective Date. The Tungsten Explorer Construction Contract is in full force and effect, and to the knowledge of the Company and the Parent, there are no currently existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under the Tungsten Explorer Construction Contract. The Company reasonably expects the Tungsten Explorer to be was delivered to the Company or a Guarantor by DSME to, and was accepted by, Vantage Driller VI Co. in accordance with the Tungsten Explorer Construction Contract on or prior to June 30July 11, 20132013 (the “Tungsten Explorer Delivery Date”). The Tungsten Explorer Construction Assignment is in full force and effect and creates in favor of the Pari Passu Collateral Agent for the benefit of the holders of all Pari Passu Obligations, including, as of the Closing Repricing Effective Date, the Collateral Agent and the other Secured Parties, a perfected security interest in the Tungsten Explorer Construction Contract. The assignment by Tungsten Explorer Company of the Assigned Rights (as defined in the Tungsten Explorer Construction Assignment) to the Pari Passu Collateral Agent pursuant to the Tungsten Explorer Construction Assignment is duly perfected and enforceable against DSME, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). The assignment of proceeds under the Tungsten Explorer Refund Guarantee is duly perfected and enforceable against the refund guarantor, Korea Finance Corporation, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and a true, correct and complete copy thereof with all amendments, modifications and supplements through the Closing Date has been delivered to the Administrative Agent.
(d) Each of the Drilling Contracts described in the Perfection Certificate dated as of the STLA Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Drilling Contract.
(e) The Collateral Agent has control over, and a duly perfected security interest in, the Earnings Account.
(f) Upon delivery to the Pari Passu Collateral Agent of the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement in the case of all Vessels other than the Tungsten Explorer and, in the case of the Tungsten Explorer, upon delivery of an The security interest granted under each Earnings Assignment of a Guarantor, each relevant Guarantor and an Insurance Assignment of each relevant such Guarantor, each assignments of all Internal Charter Charters and each other internal contracts contract respecting the use or operation of the Tungsten Explorer, together with the consent of the relevant Internal Charterer under each such Internal Charter or other internal contract described in the Perfection Certificate dated as of the Closing Date, the security interest granted under each such assignment Vessels is or will be duly perfected, and each such assignment is or will be enforceable against the relevant Internal Charterer. Each of the Internal Charters and other internal contracts described in the Perfection Certificate dated as of the STLA Closing Date is in full force and effect, and as of the Repricing Effective Date there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any such Internal Charter or other such internal contract.
(g) All of the obligations and liabilities of the Borrowers and the Guarantors under the Collateral Agreements are in full force and effect as of the date hereofRepricing Effective Date.
(h) After giving effect to the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement, the obligations secured pursuant to the Collateral Agreements shall include the obligations of the Borrowers and the Guarantors under the Notes and Indenture.
(i) Neither the execution nor delivery of any Loan Document the First Amendment nor the advancing of the Loans effectiveness thereof will, in any way, abrogate, release, or terminate any of the Collateral Agreements or the liabilities and obligations of the Company or the Guarantors thereunder.
(i) On the Tungsten Explorer Delivery Date, the Company executed and delivered, or caused to be executed and delivered, and did, or caused to be done, the documents or actions set out below:
(i) Delivery to the Pari Passu Collateral Agent, in form reasonably satisfactory to the Pari Passu Collateral Agent, of:
(1) a copy of the Protocol of Delivery and Acceptance respecting the Tungsten Explorer executed by (i) DSME and (ii) the Company or a Subsidiary of the Company, or any branch or office thereof;
(2) a copy of the full warranty Xxxx of Sale and Builder’s Certificate respecting the Tungsten Explorer;
(3) a copy of the class certificates respecting the Vessels (other than the Tungsten Explorer) to be received on the STLA Closing Date;
(4) a copy of the Bahamian Certificate of Registry respecting the Tungsten Explorer;
(5) a copy of the Bahamian Certificate of Ownership and Encumbrance issued by the appropriate Bahamian authorities evidencing registration of the Tungsten Explorer under Bahamian flag in the name of the Parent, the Company or one of their Subsidiaries and recording of the Ship Mortgage;
(6) a copy of the duly executed Ship Mortgage (including deed of covenants) covering the Tungsten Explorer (and in respect of the deed of covenants only, also the Pari Passu Collateral Agent) and duly filed with the Bahamian authorities;
(7) (a) evidence of insurance respecting the Tungsten Explorer that complies with the insurance requirements set forth in the Collateral Agreements, including copies of cover notes (with loss payable clause and notice of assignment attached), letter from protection and indemnity club, and letter detailing the insurances from the Company’s independent marine insurance broker and (b) a favorable report from the Insurance Advisor addressed to the Pari Passu Collateral Agent stating that the insurances covering the Tungsten Explorer (x) comply with the requirements of the Ship Mortgage and (y) are sufficient in form and substance to protect the interests of the Pari Passu Collateral Agent and the other Secured Parties.
(8) a copy of a duly executed Internal Charter, if any, respecting the Tungsten Explorer to cover any and all bareboat charters respecting the Tungsten Explorer or an Officers’ Certificate stating that the Company has not entered into any Internal Charter;
(9) a copy of the duly executed Drilling Contract respecting the Tungsten Explorer (if any);
(10) an opinion of the Company’s Bahamian legal counsel, in the form attached hereto as Exhibit L;
(11) an opinion of counsel of the Company or Restricted Subsidiary that will be the owner of the Tungsten Explorer in form and substance reasonably satisfactory to the Pari Passu Collateral Agent; and
(12) a duly executed Assignment of Insurance, Assignment of Earnings, Internal Charterer’s Assignment of Insurance (if any), Internal Charterer’s Assignment of Earnings (if any) or Accession Agreement (if any) substantially in the form of Exhibits I-1, I-2, J-1 and J-2, as applicable, or such other form as shall be approved by the Administrative Agent.
(ii) Performance of any additional Uniform Commercial Code, Companies’ Registry or other similar filings or notices or recordings requested by the Pari Passu Collateral Agent to perfect the security interests or Liens granted, or intended to be granted, by any Collateral Agreement and delivery of evidence of the foregoing to the Pari Passu Collateral Agent in form and substance reasonably satisfactory to the Pari Passu Collateral Agent.
(j) All information certified by the Chief Financial Officer of the Parent in the perfection certificate dated as of the STLA Closing Date and delivered by such officer on behalf of the Borrowers and the Guarantors (the “Perfection Certificate”) is true and correct as of the STLA Closing Date.
Appears in 1 contract
Security Interests; Collateral. As security for the full and timely ------------------------------ payment and performance of all obligations of the Borrower hereunder and under the other Loan Documents, now existing or hereafter arising, the Borrower and each of its Subsidiaries have granted or shall grant to the Collateral Agents for the benefit of the Post-Petition Agent, the Collateral Agents, and the Lenders a valid, binding, enforceable, duly perfected first priority security interest in (a) The the Collateral Agreements are effective to create described in favor the Financing Orders, including avoidance, preference and fraudulent transfer recoveries of the Pari Passu Collateral AgentDebtors, for subject only to Liens specified in the ratable benefit Financing Orders and the Carve-Out, and (b) substantially all of the Secured Partiesassets of the Non-Debtor Subsidiaries that are Collateral Guarantors. With respect to the property of the Debtors, this grant shall be pursuant to the Financing Orders. With respect to the property of the Non-Debtor Subsidiaries that are Collateral Guarantors, this grant shall be pursuant to the Collateral Documents. Without limiting the generality of the foregoing, the repayment of the Loans and all other obligations of the Borrower arising under this Agreement and the other Loan Documents shall be granted, as set forth in more detail in the Financing Orders, a legal, valid first administrative superpriority status and enforceable a first priority security interest in the Collateral and, in each case subject to the terms of the Intercreditor Agreement, (i) when financing statements in appropriate form are filed in the appropriate filing office (as required by law to perfect the Liens contemplated herein), the Pari Passu Collateral Agent will obtain a valid and perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of on the Collateral in which a security the Debtors have an interest may be perfected by the filing Bankruptcy Court pursuant to Section 364(d) of a financing statement under the applicable Uniform Commercial Bankruptcy Code, in each case prior with priority and superior in right to superiority over (i) any and all other Person (Liens and claims against the property of the Borrowers or the Collateral existing on the Commencement Date, except that it shall rank as Pari Passu Indebtedness with respect to each other holder of other Pari Passu Obligations), other than for Prior Permitted Liens having priority under Legal RequirementsLiens, and (ii) when such Collateral priority claims (including administrative expenses) alleging priority pursuant to Section 503, Section 506(c) or Section 507 of the extent it constitutes a certificated security Bankruptcy Code, heretofore or an instrument hereafter arising or incurred in the Chapter 11 Cases or in any superseding case or cases under any chapter of the applicable Uniform Commercial Bankruptcy Code) is delivered to such Collateral Agent, such Security other than the Carve-Out. The execution and delivery of this Agreement shall create a fully perfected first priority Lien on, and security interest in, all right, title and interest of not be construed as an acknowledgment by the pledgors thereunder in Post-Petition Agent or any Lender (or any Pre-Petition Lender) that such Collateral, in each case prior and superior in right to any other Person (except that it shall rank as Pari Passu Indebtedness party is adequately protected with respect to each other holder its interests in any collateral granted to secure Pre-Petition Indebtedness. The functional equivalent of other Pari Passu Obligations), other than Permitted Liens having this type of priority under Legal Requirements.
(b) The original Ship Mortgages dated as of October 25, 2012 (the “Original Ship Mortgages”), as amended in connection with the Transactions pursuant to, is intended to be realized in the case property of each Panamanian Flagged Vessel, an amendment No. 1 to First Naval Mortgage (each, a “Panamanian Mortgage Amendment”) and, in the case of each Bahamian Flagged Vessel (other than the Tungsten Explorer), an amendment No. 1 to the Deed of Covenants associated with the Original Ship Mortgage (each, an “Amendment to Deed of Covenants”Non-Debtor Subsidiaries, and together with the Panamanian Mortgage Amendments, collectively, the “Amendments”; the Original Ship Mortgages, as amended by the Amendments, and the ship mortgage to be executed when the Tungsten Explorer is delivered, are collectively called the “Specified Ship Mortgages”), are effective to grant a legal and valid mortgage Lien in favor of the Pari Passu Collateral Agent on all of the Company’s and/or the applicable Guarantor’s right, title and interest in (A) the Topaz Driller, the Emerald Driller, the Sapphire Driller and the Aquamarine Driller (collectively, the “Panamanian Flagged Vessels”) and (B) the Platinum Explorer, the Titanium Explorer and, upon its recording on its delivery date, the Tungsten Explorer (collectively, the “Bahamian Flagged Vessels” and the Bahamian Flagged Vessels together with the Panamanian Flagged Vessels, the “Specified Vessels”) under and pursuant to the laws of the Republic of Panama and the Commonwealth of the Bahamas, as applicable, and a foreign preferred mortgage thereon under 46 USC Chapter 313. When the Panamanian Mortgage Amendments are duly provisionally recorded in the proper public registry in the case of the Panamanian Flagged Vessels and the Amendments to Deed of Covenants are executed and delivered in the case of the Bahamian Flagged Vessels (and in the case of the Tungsten Explorer when the Ship Mortgage covering it is duly recorded), the recording fees and taxes in respect thereof are paid, and compliance is otherwise had with the formal requirements of local law applicable thereto, each Ship Mortgage shall constitute a valid, perfected and enforceable first preferred mortgage on the Specified Vessels in favor of the Pari Passu Collateral Agent for the ratable benefit of the Secured Parties (as defined in the Specified Ship Mortgages), securing the “Secured Obligations” as defined in the Specified Ship Mortgages, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity).
(c) Each of the Tungsten Explorer Construction Contract and the Tungsten Explorer Construction Assignment delivered to the Administrative Agent by the Company is a true, correct and complete copy thereof with all amendments, modifications and supplements and attachments, schedules and exhibits through the Closing Date. The Tungsten Explorer Construction Contract is in full force and effect, and to the knowledge of the Company and the Parent, there are no currently existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under the Tungsten Explorer Construction Contract. The Company reasonably expects the Tungsten Explorer to be delivered to the Company or a Guarantor in accordance with the Tungsten Explorer Construction Contract on or prior to June 30, 2013. The Tungsten Explorer Construction Assignment is in full force and effect and creates in favor of the Pari Passu Collateral Agent for the benefit of the holders of all Pari Passu Obligations, including, as of the Closing Date, the Collateral Agent and the other Secured Parties, a perfected security interest in the Tungsten Explorer Construction Contract. The assignment by Tungsten Explorer Company of the Assigned Rights (as defined in the Tungsten Explorer Construction Assignment) to the Pari Passu Collateral Agent pursuant to the Tungsten Explorer Construction Assignment is duly perfected and enforceable against DSME, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity). The assignment of proceeds under the Tungsten Explorer Refund Guarantee is duly perfected and enforceable against the refund guarantor, Korea Finance Corporation, except that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability from time to time in effect relating to or affecting creditors’ rights and general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity) and a true, correct and complete copy thereof with all amendments, modifications and supplements through the Closing Date has been delivered to the Administrative Agent.
(d) Each of the Drilling Contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Drilling Contract.
(e) The Collateral Agent has control over, and a duly perfected security interest in, the Earnings Account.
(f) Upon delivery to the Pari Passu Collateral Agent of the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement in the case of all Vessels other than the Tungsten Explorer and, in the case of the Tungsten Explorer, upon delivery of an Earnings Assignment of each relevant Guarantor and an Insurance Assignment of each relevant Guarantor, assignments of Internal Charter and other internal contracts respecting the use or operation of the Tungsten Explorer, together with the consent of the relevant Internal Charterer Pre-Petition Lenders and the lenders under each such Internal Charter or other internal contract described the UK Facility (by requisite percentages) to the subordination priming of their Liens to the Liens of the Collateral Agents (whether in the Perfection Certificate dated as property of the Closing DateDebtors, in the property of the Non-Debtors Subsidiaries, or otherwise) is to be evidenced, by the execution and delivery of the Intercreditor Agreement. Specifically, certain of the Collateral is subject to Liens securing the Pre-Petition Indebtedness and the obligations under the U.K. Facility, and the first priority security interest granted under each such assignment is or will be duly perfected, and each such assignment is or will be enforceable against the relevant Internal Charterer. Each of the Internal Charters and other internal contracts described in the Perfection Certificate dated as of the Closing Date is in full force and effect, and there are currently no existing and unwaived and/or uncured defaults or events which with time or notice would become events of default under any Collateral Agents shall be acknowledged by such Internal Charter or other such internal contract.
lenders (gby requisite percentages) All of the obligations and liabilities of the Borrowers and the Guarantors under the Collateral Agreements are in full force and effect as of the date hereof.
(h) After giving effect pursuant to the Intercreditor Designation Notice, the Intercreditor Joinder Agreement and the Insurance and Earnings Supplement, the obligations secured pursuant to the Collateral Agreements shall include the obligations of the Borrowers and the Guarantors under the Notes and IndentureAgreement.
(i) Neither the execution nor delivery of any Loan Document nor the advancing of the Loans will, in any way, abrogate, release, or terminate any of the Collateral Agreements or the liabilities and obligations of the Company or the Guarantors thereunder.
(j) All information certified by the Chief Financial Officer of the Parent in the perfection certificate dated as of the Closing Date and delivered by such officer on behalf of the Borrowers and the Guarantors (the “Perfection Certificate”) is true and correct as of the Closing Date.
Appears in 1 contract
Samples: Post Petition Multicurrency Superpriority Credit Agreement (Apw LTD)
