Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel. (i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent. (c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable. (d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco. (e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel. (f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 4 contracts
Samples: Credit Agreement (Horizon Pharma PLC), Credit Agreement (Horizon Pharma PLC), Credit Agreement (Horizon Pharma PLC)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently qualifies as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Person which qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary Person agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject to no other exclusions for certain personal property as set forth in the Collateral Documents and to Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to (i) the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than Excluded Restricted Subsidiary Equity Interests) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request, and (ii) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until June 30, 2010 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to At any time the Borrower determines that a Subsidiary that Guarantor is an Excluded not required to be a Subsidiary Guarantor under the definition of “Material Subsidiary”, concurrently with including upon the designation addition of any another Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after Subsidiary Guarantor, the Closing Date, Irish Holdco Borrower shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as provide the Administrative Agent may reasonably requestwith written notice thereof setting forth information in reasonable detail describing why such Subsidiary is no longer required to be a Subsidiary Guarantor. Upon the Administrative Agent’s reasonable determination that such Subsidiary is no longer required to be a Subsidiary Guarantor, all in form and substance reasonably satisfactory to the Administrative Agent shall, at the Borrower’s expense, release such Subsidiary from the Subsidiary Guaranty and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered Collateral Documents pursuant to this Section 5.09 such documentation as of the Closing Date Borrower shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)reasonably request.
Appears in 4 contracts
Samples: Credit Agreement (Deluxe Corp), Credit Agreement (Deluxe Corp), Credit Agreement (Deluxe Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as as, a Material Subsidiary, which in the case of a qualification shall be the date on which financial statements have been delivered pursuant to Section 5.01 that demonstrate such qualification) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(b) (i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 3 contracts
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that becomes, or is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including designated by qualifying independently the Company as, or being designated by the Borrower qualifies independently as a Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary) (a ” and “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed; provided that (x) real property shall be limited to mining property and (y) such owned property shall exclude precious metal, any and all inventory or work-in-process that contains precious metal and any proceeds of the foregoing (collectively, “Precious Metal”)), to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) mining Property owned by Irish Holdco the Company or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertyHolders of Secured Obligations pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real mining property or improvements thereto or any interest thereintherein but excluding Precious Metal) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Company will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 3 contracts
Samples: Credit Agreement (MATERION Corp), Credit Agreement (MATERION Corp), Credit Agreement (MATERION Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than any CFC Holding Company or any Subsidiary of any CFC or CFC Holding Company) which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. For the avoidance of doubt, except as provided in Section 5.09(f) below, no CFC or CFC Holding Company (or any subsidiary of any CFC or CFC Holding Company) shall, by joinder or otherwise, become party to the Subsidiary Guaranty or the Security Agreement or otherwise be bound by the terms and provisions thereof.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and permitted by Section 5.09(f), Irish Holdco (A) 6.02. The Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than the Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first prioritypriority perfected Lien, perfected Lien subject in any case to Liens permitted by Section 6.02, in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary (other than the Applicable Pledge Percentage of the Equity Interests of a Designated Foreign Guarantor or a Subsidiary directly owned by a Designated Foreign Guarantor) shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Subject to the restriction in Section 5.09(a) and (B) b), the Borrower will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than the Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereofthereof in accordance with the terms of the Collateral Documents, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (Bi) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United StatesStates (or, except with respect to any Grantor that is a Designated Foreign Guarantor, the United States and such Grantor’s jurisdiction or incorporation or formation); provided, however, that upon the reasonable request of the Administrative Agent and in consultation with the Borrower, the Administrative Agent may make additional filings or recordations to perfect or protect its Lien in intellectual property of such Grantor that is material to the business of the Borrower and its Subsidiaries, on a consolidated basis, in any jurisdiction where any Designated Foreign Guarantor is incorporated or formed, or, if applicable, in an international registry under the World Intellectual Property issued Organization (WIPO) or registered by, or applied-for in, a Covered Jurisdiction, (Cii) to obtain any landlord waivers, estoppels or collateral access letters.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower may from time to time elect to cause any Foreign Subsidiary organized in a jurisdiction reasonably acceptable to the Administrative Agent to be a Designated Foreign Guarantor upon written notice to the Administrative Agent. Promptly following receipt of any such notice, the Administrative Agent shall advise each Lender of the details thereof. Following such election, the Borrower shall cause such Foreign Subsidiary to become a Loan Party and a Subsidiary Guarantor in accordance with this Section 5.09 as though such Subsidiary were a newly acquired or formed Material Domestic Subsidiary, mutatis mutandis, and upon (i) the satisfaction of such requirements under Sections 5.09(a) and (b) with respect to such Foreign Subsidiary and its assets, (Dii) perfect a security interest in any letter the effectiveness of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant applicable joinders to the terms Subsidiary Guaranty and the Security Agreement and any other customary local law governed Collateral Documents necessary or reasonably requested by the Administrative Agent to grant and perfect the Liens contemplated hereby, and (iii) receipt by the Administrative Agent and the Lenders of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the information and documentation reasonably requested thereby for purposes of compliance with applicable “know your customer” and anti-assignment provisions of money-laundering rules and regulations, including, without limitation, the UCC or other applicable law)Patriot Act and the Beneficial Ownership Regulation, such Foreign Subsidiary shall constitute a Subsidiary Guarantor and a Loan Party hereunder.
Appears in 2 contracts
Samples: Limited Waiver and Fourth Amendment to Third Amended and Restated Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required if (or to the extent) (A) it is limited by applicable corporate benefit, maintenance of capital, “thin capitalization” rules and financial assistance restrictions or (B) if the same would violate the fiduciary duties of their directors or contravene any legal prohibition or regulatory condition or it is generally accepted (taking into account market practice in respect of the giving of guarantees and security for financial obligations in the relevant jurisdiction) that it would result in a material risk of personal or criminal liability on the part of any officer or director of a Loan Party, provided that the relevant Loan Party shall use commercially reasonable efforts to overcome any such obstacle.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions outside any jurisdiction of any Borrower or any jurisdiction of any Guarantor that is a Material Restricted Subsidiary (the “Covered Jurisdictions”) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) immaterial assets of such Loan Party located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the U.S. Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fCollateral Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Collateral Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Collateral Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement the Subsidiary Guaranty and, in during the case of a Domestic SubsidiaryCollateral Period, deliver to the Collateral Agent the U.S. Security Agreement and each other or the Canadian Security Agreement, as applicable Collateral Document (in each case case, in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if or the Canadian Security Agreement, as applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative applicable Agent and its counsel; provided that this clause (a) shall not apply to any Subsidiary to the extent such Subsidiary is excluded from the definition of “U.S. Subsidiary Guarantor” or “Canadian Subsidiary Guarantor”.
(ib) Subject to Upon the Agreed Security Principles (where applicable) occurrence of the Collateral Date, and Section 5.09(f)at all other times during the Collateral Period, Irish Holdco the Company will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens permitted by Section 6.02. During the Collateral Period, and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Collateral Agent shall reasonably request request, subject in any case to Liens permitted by clauses (b) through (f) of Section 6.02 and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property owned by the such Loan Party (excluding other than Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without During the Collateral Period, and without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to timetime during the Collateral Period, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date and during the Collateral Period (other than Excluded Assets and assets constituting Collateral under the U.S. Security Agreement or the Canadian Security Agreement, as applicable. that become subject to the Lien in favor of under the Administrative Agent U.S. Security Agreement or the Canadian Security Agreement, as the case may be, upon acquisition thereof), Irish Holdco the Company will notify the Administrative Collateral Agent thereof, and, if requested by the Administrative Collateral Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Collateral Agent shall reasonably request and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Collateral Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect Upon the occurrence of the Collateral Release Date (if any), and so long as no Default or Event of Default is then continuing, any Liens granted to a Subsidiary the Collateral Agent pursuant to the requirements of this Section 5.10 that is an Excluded Subsidiary, concurrently with remain in effect at such time shall be promptly released by the designation Collateral Agent upon receipt by the Collateral Agent of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after written notice from the Closing Date, Irish Holdco shall cause each such Subsidiary Company (i) and the Collateral Agent agrees to execute a Joinder Agreement substantially in and deliver any documents or instruments reasonably requested by the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) Company and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Collateral Agent and its counselto evidence the release of all Collateral, all at the expense of the Company).
(f) Notwithstanding anything to the contrary herein foregoing or in any other Loan DocumentSection 5.11 below, (i) any deliverables delivered pursuant to this Section 5.09 as Liens granted by the Canadian Borrowers and Affected Foreign Subsidiaries shall only secure the Obligations of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Canadian Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Parties.
Appears in 2 contracts
Samples: Credit Agreement (Watsco Inc), Credit Agreement (Watsco Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as as, a Material Subsidiary, which in the case of a qualification shall be the date on which financial statements have been delivered pursuant to Section 5.01 that demonstrate such qualification) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Pharma PLC)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Material Subsidiary that is not (other than an Excluded Subsidiary Subsidiary) or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being designated by the Borrower as a Material Subsidiary (other than an Excluded Subsidiary) (or is designated by Parent as a “New Loan Party”)Subsidiary Guarantor, Irish Holdco and the Borrower Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty and the U.S. US Security Agreement and and/or each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty, the US Security Agreement (if applicable) and and/or other applicable Collateral Document, as applicable, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicableexcept in the case of any Loan Party organized under the laws of the United States) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent (Ai) will cause the issued and outstanding Equity Interests of each Pledge Subsidiary directly or indirectly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge pledge, collateral and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States) and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrower; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco the Borrower will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableregulations.
(d) Subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States) and Section 5.09(f), other than with respect to such Loan Parties as expressly provided in the final proviso to the definition of Agreed Security Principles), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish HoldcoParent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrower after the Closing Effective Date, Irish Holdco the Borrower shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor (Guaranty and, in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) , and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to Notwithstanding anything in this Section 5.09 as of the Closing Date shall be subject Agreement to the penultimate paragraph of Section 4.01contrary, (ii) in no event shall any Mortgage be required to be executed and delivered with respect to any real property acquired constituting Collateral, unless and until the Administrative Agent has so requested (and the conditions set forth in this Section 5.09(f) and in Section 5.09(c) have been met). The Administrative Agent shall not deliver such request with respect to any such real property located in the United States and its territories until (x) a date that is at least 45 Business Days after the Closing Date, Administrative Agent has delivered to the Loan Parties shall have ninety Lenders (90A) days after written notice of its intention to request delivery and execution of the acquisition applicable Mortgage and (B) (1) a completed standard “life of loan” flood hazard determination form and such other documents as any Lender may reasonably request to complete its flood insurance due diligence with respect to the applicable real property; (2) if the improvements to the applicable real property are determined to have special flood hazards by the Federal Emergency Management Agency, a notification to the applicable Loan Party (“Loan Party Notice”) and (if applicable) notification to the applicable Loan Party that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community where such real property is located does not participate in the NFIP; (3) documentation evidencing the applicable Loan Party’s receipt of the Loan Party Notice; and (4) if the Loan Party Notice is required to be given and, to the extent flood insurance is required by any applicable requirement of law or any Lender’s written regulatory or compliance procedures and flood insurance is available in the community in which such later date as may real property is located, evidence of a flood insurance policy in compliance with the Flood Insurance Laws (including without limitation, in an amount required under the Flood Insurance Laws) and (y) all Lenders shall have consented to the making of such request; provided that a Lender shall be agreed upon by deemed to have so consented unless such Lender objects to the execution and delivery of such Mortgage in writing to the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired no later than 45 Business Days after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case delivery of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party documentation and written notice described in clauses (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretox)(A) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)above.
Appears in 2 contracts
Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asDomestic Subsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Domestic Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, other than real property or mixed but excluding Excluded Assetsfixtures) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) unless the assets of such Foreign Subsidiary (including, without limitation, its Equity Interests in other Subsidiaries) constitute at least 3% of Consolidated Total Assets for the Borrower and its Subsidiaries, (B) willuntil the 90th day to occur after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded AssetsC) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Domestic Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Symmetry Medical Inc.), Credit Agreement (Symmetry Medical Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or an Excluded Tax Subsidiary, (ii) any Excluded Subsidiary (other than an Excluded Tax Subsidiary) that is not an Unrestricted Subsidiary or an Excluded Tax Subsidiary ceases to be an Excluded Subsidiary or (iii) an Excluded Tax Subsidiary that is not an Unrestricted Subsidiary or an Excluded Subsidiary ceases to be an Excluded Tax Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall promptly provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementsubstance reasonably satisfactory to, the U.S. Security Agreement (if applicable) and other applicable Collateral DocumentAdministrative Agent, to be securing payment of all the Finance Obligations of such New Loan Party under the Finance Documents, accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco The Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicabledocuments), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(dc) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets Property and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrower; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(ed) Except Notwithstanding the foregoing, with respect to a Subsidiary that is an (x) any property (other than Excluded SubsidiaryProperty), concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco including Mortgaged Property, owned on or acquired after the Closing Date, Irish Holdco the Loan Parties shall cause each such Subsidiary have one hundred twenty (i120) to execute a Joinder Agreement substantially in days after the form date hereof or date of Exhibit D acquisition thereof as applicable, or (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iy) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing DateNew Loan Party, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case case, such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions case of the UCC or other applicable law)foregoing, to take the actions required by this Section.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (MKS Instruments Inc), Term Loan Credit Agreement (MKS Instruments Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within sixty (60) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after (i) any Person (other than an existing Subsidiary) becomes a Restricted Subsidiary that is not an Excluded qualifies as a Material Domestic Subsidiary or (ii) the end of a fiscal quarter during which any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably to the extent requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property constituting Collateral (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected (to the extent any such Lien may be perfected under the UCC) Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with to the extent required by the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and request. Notwithstanding the foregoing, no such foreign law governed pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required until the date that occurs ninety (B90) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or days after the date such Loan Party to the extent, and within such time period as is, pledge agreement is reasonably required requested by the Administrative Agent; provided that Agent or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentthereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable, but excluding any mortgages, deeds of trust or fixture filings), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Borrower. Notwithstanding anything to the contrary herein or in the Loan Documents, no actions in any other Loan Document, (i) jurisdiction outside the United States or required by the laws of any deliverables delivered pursuant to this Section 5.09 as of jurisdiction outside the Closing Date United States shall be subject to the penultimate paragraph of Section 4.01, required (ii) other than with respect to the pledge of Equity Interests in a Pledge Subsidiary that is a First Tier Foreign Subsidiary) in order to create any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition security interests in any asset of the applicable real property (Borrower or such later date as may be agreed upon any Subsidiary physically located in any jurisdiction outside the United States or subject to a document of title governed by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case laws of any Equity Interests, property jurisdiction outside the United States or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of interests under such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)laws.
Appears in 2 contracts
Samples: Credit Agreement (Rogers Corp), Credit Agreement (Rogers Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement andthe Guaranty, or, in the case of a Domestic Material Subsidiary that is a Foreign Subsidiary, a separate Guaranty governed by local law to the U.S. extent so requested by the Administrative Agent (provided that no Material Subsidiary that is a Foreign Subsidiary shall be required to deliver such a joinder or Guaranty to the extent (A) such action by such Subsidiary is prohibited or restricted by applicable law or regulation (any such Material Subsidiary that is a Foreign Subsidiary described in the foregoing clause (A), a “Specified Non-Required Subsidiary”) or (B) the Administrative Agent or its counsel determines that such joinder or Guaranty would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to a legally valid, binding and enforceable guaranty) and, if the Administrative Agent so elects in its reasonable discretion after consultation with the Company, the Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Each U.S. Loan Party will cause, and will cause each other Loan Party of its subsidiaries which is a Material Subsidiary to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for Agent, on behalf of itself and the benefit of the other Secured Parties Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) each U.S. Loan Party will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly or indirectly owned by Irish Holdco or any other such U.S. Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) willrequest, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and all within such time period as is, is reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Restatement Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to jurisdictions the extent the Administrative Agent or its counsel determines that impose mortgage recording taxessuch pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(ii) At any time after the Restatement Effective Date, to the extent the Administrative Agent so elects in its reasonable discretion after consultation with the Company, the Administrative Agent may require the Company or any Loan Party (any such Person, an “Additional Collateral Loan Party”) to comply with the provisions of this Section 5.09, in which case the Company will cause, or will cause the applicable Mortgages Loan Party to cause, all (or the portion required by the Administrative Agent) of its owned personal property (whether tangible, intangible, or mixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent, on behalf of itself and Mortgage Instruments the other Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any other case to Liens permitted by Section 6.02. Without limiting the generality of the foregoing, each Additional Collateral Documents shall not secure indebtedness in an amount exceeding 105Loan Party will, to the extent required by the Administrative Agent, cause 100% of the fair market value issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by such Additional Collateral Loan Party to be subject at all times to a first priority, perfected Lien in favor of the applicable mortgaged propertyAdministrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request, all within such time period as is reasonably determined in good faith required by the Loan Parties and reasonably acceptable to the Administrative Agent. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.013 of the Amendment and Restatement Agreement, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and limitations set forth in Section 5.09(f)10.02 below, if any assets (including excluding any real property or improvements thereto or any interest therein) are acquired by a Loan Party that has previously entered into (or has been required by the Administrative Agent to enter into) a Security Agreement (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Company will notify the Administrative Agent thereof, and, if reasonably requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Cimpress N.V.), Credit Agreement (Cimpress N.V.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Domestic Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asSubsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Domestic Subsidiary (other than an Excluded Subsidiary) to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty to become a Loan Party and a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Domestic Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to thereof. Such joinders shall be accompanied by appropriate corporate or other entity resolutions, other corporate or other entity documentation and legal opinions as may reasonably be requested by the Administrative Agent, and such Person shall take all actions necessary or advisable in the opinion of the Administrative Agent to cause the Lien created by the Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested byby the Administrative Agent, and such resolutions, documentation, opinions and financing statements shall be in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations to the extent required by, and in accordance with with, the terms and conditions of the Collateral Documents on a first priority basisDocuments, except for Excluded Actions and subject in each case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to but in each case except for Excluded Actions, the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of in each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations to the extent required by, and in accordance with with, the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding other than Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, (i) no such Mortgages or Mortgage Instruments shall be required to be prepared or delivered until the date that occurs seventy-five (75) days after the date of acquisition of the subject real property (or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto) and (ii) no pledge or security agreement in respect of the Equity Interests in a Foreign Subsidiary shall be required to be prepared or delivered, or any other formalities required to be observed with respect to jurisdictions the creation or perfection of a Lien on such Equity Interests, under the laws of the jurisdiction of organization or formation of such Foreign Subsidiary, (A) unless such Foreign Subsidiary is a Material Subsidiary and (B) until the date that impose mortgage recording taxesoccurs seventy-five (75) days after the acquisition of such Equity Interests (or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto); provided that, notwithstanding satisfaction of the applicable Mortgages conditions set forth in subclause (A) and Mortgage Instruments and (B) above, no pledge or security agreement governed by laws outside the United States in respect of the Equity Interests in a Foreign Subsidiary shall be required to be prepared or delivered, or any other Collateral Documents shall formalities required to be observed with respect to the creation or perfection of a Lien on such Equity Interests, to the extent the Administrative Agent or its counsel determines that such pledge would not secure indebtedness in an amount exceeding 105% provide material credit support for the benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to for the Agreed Security Principles and Section 5.09(f)exception of Excluded Actions, Irish Holdco the Borrower will, and will cause each other Loan Party Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended in the Collateral to be created by the extent required by, and in accordance with, the terms and conditions of the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Advisory Board Co), Credit Agreement (Advisory Board Co)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and request. Notwithstanding the foregoing, (Bi) will, and will cause each other no Loan Party to, deliver Mortgages and Mortgage Instruments shall be required to provide any mortgage or deed of trust with respect to any real property property, (excluding Excluded Assetsii) owned by Irish Holdco or such no Loan Party shall be required to provide any pledge or security agreement that is governed by any law other than the laws of the State of New York, and (iii) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and limitations in the last sentence of Section 5.09(f5.09(b), Irish Holdco the Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (including, for the avoidance of doubt, in connection with the disclosure of any additional assets constituting Collateral pursuant to any updates of the exhibits to the Security Agreement as required thereby), all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Nextgen Healthcare, Inc.), Credit Agreement (Quality Systems, Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and reasonably promptly thereafter shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on Documents, subject in any case to Liens permitted by Section 6.02 (provided that, to the extent that the Administrative Agent determines in its reasonable discretion, in consultation with the Borrower, that the cost or burden of obtaining or perfecting a security interest in any such owned property are excessive in relation to the value of the security to be afforded thereby, such owned property shall not be required to be subject to a first priority basispriority, subject to no other Liens other than Permitted Liens and (ii) without perfected Lien in favor of the Administrative Agent). Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents (ii) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements. Notwithstanding the foregoing, perfection of Liens shall not secure indebtedness in an amount exceeding 105% be required with respect to owned property (whether real, personal, tangible, intangible, or mixed) of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative AgentForeign Subsidiaries.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property the Borrower subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 limitations set forth in clauses (a) and related legislation and regulations to the extent applicable(b) above.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.), Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably to the extent requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 2 contracts
Samples: Credit Agreement (Rogers Corp), Credit Agreement (Rogers Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than thirty (30) days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded (including pursuant to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary) or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Restricted Domestic Subsidiary pursuant to the definition of “Material Restricted Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Restricted Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. Notwithstanding anything to the contrary set forth herein, no Restricted Subsidiary constituting an Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) limitations contained in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) Collateral to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents. Notwithstanding the foregoing, (i) no Loan Party shall be required to provide any mortgage, landlord waiver, collateral access agreement, estoppel or deed of trust with respect to any real property (including leasehold interests), (ii) no Loan Party shall be required to obtain the consent of any governmental authority or third party, (iii) no actions shall be required to perfect a security interest in letter of credit rights, other than a filing of a UCC financing statement, (iv) no deposit account or securities account, or similar, control agreements shall be required, (v) assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such other pledge and security documents assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by the Administrative Agent shall reasonably request (in consultation with the Borrower) and (Bvi) willthe Borrower and Subsidiary Guarantors shall not be required, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by nor shall the Administrative Agent; provided Agent be authorized, to take any action in any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside the U.S. or to perfect any security interests in such assets, including, without limitation, any intellectual property registered in any non-U.S. jurisdiction or any equity interests of any subsidiaries organized in any non-U.S. jurisdiction (it being understood that with respect to jurisdictions that impose mortgage recording taxes, there shall be no security agreements or pledge agreements governed under the applicable Mortgages and Mortgage Instruments and laws of any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentnon-U.S. jurisdiction).
(c) Without limiting the foregoing, but subject to the Agreed Security Principles limitations in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will, and will cause each other Loan Party Restricted Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (including, for the avoidance of doubt, in connection with the disclosure of any additional assets constituting Collateral pursuant to any updates of the exhibits to the Security Agreement as required thereby), all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to Notwithstanding the Agreed Security Principles and Section 5.09(f)foregoing, if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco Borrower shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) Counsyl to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to and otherwise comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions requirements of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 within 30 days (as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon extended by the Administrative Agent in the exercise of its reasonable discretion with respect theretosole discretion) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan PartyCounsyl Acquisition
(e) During the Modification Period, the Loan Parties Borrower and its Restricted Subsidiaries shall have forty-five (45) days, maintain their aggregate cash and cash equivalents in excess of $5,000,000 on deposit with or ninety (90) days in the case otherwise credited to an account with one or more of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Lenders.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary (other than any Affected Subsidiary) to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but mixed, subject to the exceptions expressly contained herein and in any Loan Document and excluding Excluded AssetsProperty) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests (other than Excluded Property) of each Pledge Subsidiary directly or indirectly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and request. Notwithstanding the foregoing, (i) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, or (B) willto the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and will cause each other Loan Party toenforceable pledge agreements, deliver Mortgages and Mortgage Instruments (ii) no control or similar arrangements shall be required with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit or such Loan Party to the extent, and within such time period as is, reasonably required securities accounts unless so requested by the Administrative Agent; provided that , (iii) the Borrower and the Loan Parties shall not be required to take any action with respect to jurisdictions that impose mortgage recording taxesthe creation or perfection of Liens under foreign law with respect to any Collateral other than foreign law governed pledge agreements described in clause (i) above, the applicable Mortgages (iv) no landlord lien waivers, estoppels or collateral access letters shall be required and Mortgage Instruments and any (v) in respect of motor vehicles subject to certificates of title, no steps other Collateral Documents than filing of UCC financing statements shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentbe required.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Material Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest thereintherein but excluding any Excluded Property) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Angiodynamics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than thirty (30) days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded (including pursuant to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary) or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Restricted Domestic Subsidiary pursuant to the definition of “Material Restricted Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Restricted Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. Notwithstanding anything to the contrary set forth herein, no Restricted Subsidiary constituting an Excluded Subsidiary shall be required to be a Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) limitations contained in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) Collateral to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents. Notwithstanding the foregoing, (i) no Loan Party shall be required to provide any mortgage, landlord waiver, collateral access agreement, estoppel or deed of trust with respect to any real property (including leasehold interests), (ii) no Loan Party shall be required to obtain the consent of any governmental authority or third party, (iii) no actions shall be required to perfect a security interest in letter of credit rights, other than a filing of a UCC financing statement, (iv) no deposit account or securities account, or similar, control agreements shall be required, (v) assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such other pledge and security documents assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by the Administrative Agent shall reasonably request (in consultation with the Borrower) and (Bvi) willthe Borrower and Subsidiary Guarantors shall not be required, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by nor shall the Administrative Agent; provided Agent be authorized, to take any action in any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside the U.S. or to perfect any security interests in such assets, including, without limitation, any intellectual property registered in any non-U.S. jurisdiction or any equity interests of any subsidiaries organized in any non-U.S. jurisdiction (it being understood that with respect to jurisdictions that impose mortgage recording taxes, there shall be no security agreements or pledge agreements governed under the applicable Mortgages and Mortgage Instruments and laws of any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentnon-U.S. jurisdiction).
(c) Without limiting the foregoing, but subject to the Agreed Security Principles limitations in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will, and will cause each other Loan Party Restricted Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (including, for the avoidance of doubt, in connection with the disclosure of any additional assets constituting Collateral pursuant to any updates of the exhibits to the Security Agreement as required thereby), all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject Notwithstanding the foregoing, the Borrower shall cause Counsyl to become a Guarantor and otherwise comply with the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) requirements of this Section 5.09, all at the expense of Irish Holdco.
5.09 within 30 days (e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon extended by the Administrative Agent in the exercise of its reasonable discretion with respect theretosole discretion) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Counsyl Acquisition.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as a Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens permitted by Section 6.02 (and (ii) without provided further that such perfection with respect to intellectual property shall be limited to the United States). Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until 90 days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until 90 days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection the Borrower (except that such perfection with any real respect to intellectual property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations shall be limited to the extent applicableUnited States).
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrower after the Closing Effective Date, Irish Holdco the Borrower shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor (in the case of a Foreign SubsidiaryGuaranty, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement the Guaranty and, if the Administrative Agent so elects in its reasonable discretion after consultation with the case of a Domestic SubsidiaryCompany, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Each U.S. Loan Party will cause, and will cause each other Loan Party of its subsidiaries which is a Material Subsidiary to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for Agent, on behalf of itself and the benefit of the other Secured Parties Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) each U.S. Loan Party will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly or indirectly owned by Irish Holdco or any other such U.S. Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) willrequest, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and all within such time period as is, is reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Restatement Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to jurisdictions the extent the Administrative Agent or its counsel determines that impose mortgage recording taxessuch pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(ii) At any time after the Restatement Effective Date, to the extent the Administrative Agent so elects in its reasonable discretion after consultation with the Company, the Administrative Agent may require the Parent or any Loan Party (any such Person, an “Additional Collateral Loan Party”) to comply with the provisions of this Section 5.09, in which case the Parent will cause, or will cause the applicable Mortgages Loan Party to cause, all (or the portion required by the Administrative Agent) of its owned personal property (whether tangible, intangible, or mixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent, on behalf of itself and Mortgage Instruments the other Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any other case to Liens permitted by Section 6.02. Without limiting the generality of the foregoing, each Additional Collateral Documents shall not secure indebtedness in an amount exceeding 105Loan Party will, to the extent required by the Administrative Agent, cause 100% of the fair market value issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by such Additional Collateral Loan Party to be subject at all times to a first priority, perfected Lien in favor of the applicable mortgaged propertyAdministrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request, all within such time period as is reasonably determined in good faith required by the Loan Parties and reasonably acceptable to the Administrative Agent. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.013 of the Amendment and Restatement Agreement, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and limitations set forth in Section 5.09(f)10.02 below, if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Restatement Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Parent will notify the Administrative Agent thereof, and, if reasonably requested by the Administrative Agent, Irish Holdco the Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Parent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Vistaprint N.V.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within Subject to the time periods specified Limited Conditionality Provision, within sixty (60) days (or such later date as may be agreed upon by the Administrative Agent in Section 5.09(fits reasonable discretion) below after any Person becomes a Restricted wholly-owned Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower qualifies as a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such joinders to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate requisite resolutions, other corporate organizational documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel. Notwithstanding anything to the contrary in any Loan Document, (i) no Excluded Domestic Subsidiary or Excluded Foreign Subsidiary shall be required to be a Subsidiary Guarantor and (ii) no Collateral constituting fee-owned real property located in the State of New York shall secure any Revolving Commitments, Revolving Loans, Incremental Revolving Commitments, Other Revolving Commitments, Refinancing Revolving Commitments or Revolving Credit Exposure.
(ib) Subject to the Agreed Security Principles (where applicable) Limited Conditionality Provision and the terms, limitations and exceptions set forth in the applicable Collateral Documents and this Section 5.09(f5.09(b), Irish Holdco the Company will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded AssetsAssets and any real property that is not Material Real Property) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Limited Conditionality Provision and the terms, limitations and exceptions set forth in the applicable Collateral Documents, the Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, priority perfected (subject in any case to Liens permitted by Section 6.02) Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Material Real Property owned by Irish Holdco the Company or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, (i) no such Mortgage or Mortgage Instruments are required to be delivered hereunder until the date that is ninety (90) days (or such later date as may be agreed upon by the Administrative Agent in its reasonable discretion) after (A) the Effective Date, with respect to jurisdictions that impose mortgage recording taxesMaterial Real Property owned by the Company or any Subsidiary Guarantor on the Effective Date (after giving effect to the PCB Acquisition) or (B) the date of acquisition thereof, with respect to Material Real Property acquired by the applicable Company or any Subsidiary Guarantor after the Effective Date, (ii) without limiting the immediately preceding clause (i), no such Mortgages and Mortgage Instruments shall be required in respect of real property located in Depew, New York until after the date on which the Town of Lancaster Industrial Development Agency provides any required consents in respect thereof (and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of Company shall, to the applicable mortgaged property, as reasonably determined in good faith extent requested by the Loan Parties and reasonably acceptable to the Administrative Agent, make commercially reasonable efforts to obtain any such consents) and (iii) no foreign pledge documentation in respect of the pledge of Equity Interests of a Pledge Subsidiary that is a Material Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements, and (C) to the extent the Company reasonably determines in its good faith judgment that such pledge would result in a material adverse tax consequence to the Company or any Subsidiary.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the Limited Conditionality Provision and the terms, limitations and exceptions set forth herein or in any Collateral Document, all at the expense of Irish Holdcothe Company, in each case to the extent required by, and subject to the limitations and exceptions of, this Agreement and the other Loan Documents; provided that, in connection with any real property subject respect to this Section 5.09(c)the Material Real Property, Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations such deliveries shall be made to the extent applicablerequired by Section 5.03(b) above.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including excluding any real property or improvements thereto or any interest thereinMaterial Real Property as the same is addressed in clause (c) above) are acquired by a Loan Party the Company or any Subsidiary Guarantor after the Effective Date (other than (i) Excluded Assets and or (ii) assets of the type constituting Collateral under any Collateral Document that either become subject to the Lien in favor of under such Collateral Document upon acquisition thereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent upon acquisition thereofAgent’s Lien in such assets), Irish Holdco the Company will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and and, as applicable, cause the other Loan Parties any Subsidiary Guarantor to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiarythe Company, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Datesubject, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiaryhowever, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent Limited Conditionality Provision and its counsel.
(f) Notwithstanding anything to the contrary terms, limitations and exceptions set forth herein or in any other Loan Collateral Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) provided that with respect to any real property Material Real Property acquired by the Company or any Subsidiary Guarantor after the Closing Effective Date, which property would not be automatically subject to another Lien pursuant to an existing Collateral Document, no Mortgage or Mortgage Instrument shall be required to be delivered hereunder prior to the Loan Parties shall have date that is ninety (90) days after the acquisition of thereof as determined by the applicable real property Borrower (acting reasonably in good faith) (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretodiscretion).
(e) Notwithstanding the foregoing, the Administrative Agent shall not require the Company or any other Loan Party (1) to obtain or deliver any landlord waivers, estoppels, collateral access agreements or any similar documents or instruments or (2) to take the actions required by this Section 5.09, (iii) any action with respect to any other property (whether real or assets acquired after the Closing Date personal and whether now owned or with respect to any New Loan Party, the Loan Parties shall have forty-five (45hereafter acquired) days, or ninety (90) days in the case located outside of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto)United States, and (iv) no Loan Party shall have any obligation be required to (A) enter into control agreements with respect any collateral documentation governed by or required by the laws of any jurisdiction outside the United States in order to any security interest create or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral such property, whether or not located in any jurisdiction other than in outside of the United StatesStates (provided that, except this clause (2) shall not apply to pledge documentation in respect of the pledge of Equity Interests in any Material Foreign Subsidiary that is a Pledge Subsidiary). Neither any Loan Party nor any of their respective Affiliates shall be required to enter into any collateral assignment agreement with respect to Foreign Intellectual Property issued interests in the PCB Merger Agreement (or registered byany related document, instrument or applied-agreement) or any definitive acquisition documentation for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels other acquisition or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)investment.
Appears in 1 contract
Samples: Credit Agreement (MTS Systems Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after If any Person other than an Affected Subsidiary is or becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or a Material Foreign Subsidiary, then the Company shall, as promptly as possible but in any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to event within thirty (30) days (or such later date as may be an Excluded Subsidiary (including by qualifying independently as, or being designated agreed upon by the Borrower as a Material Subsidiary) (a “New Loan Party”Administrative Agent), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than Affected Subsidiaries) which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document Subsidiary Guaranty or joinder thereto (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by guaranty all of the terms and provisions of this AgreementSecured Obligations, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty or joinder to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel. Notwithstanding the foregoing, except as provided in Section 5.09(b) or 5.09(d)(iii) or in Article X of this Agreement, no Foreign Subsidiary shall be required to guaranty the payment or performance of any Secured Obligations for so long as such Foreign Subsidiary is an Affected Subsidiary.
(fb) Notwithstanding anything At any time the guaranty by Xxxxxx Canada described in this clause (b) below would not directly or indirectly cause Xxxxxx Canada to become (or otherwise result in Xxxxxx Canada becoming) an Affected Subsidiary, the contrary herein or Company shall, as promptly as possible but in any other Loan Document, event within thirty (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (9030) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in its sole discretion) of such time, provide the exercise Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of its reasonable discretion with respect theretoXxxxxx Canada and shall cause Xxxxxx Canada to deliver to the Administrative Agent a Subsidiary Guaranty or joinder thereto (in the form contemplated thereby) pursuant to take which Xxxxxx Canada agrees to be bound by the actions required terms and provisions thereof to the extent necessary to guaranty the Secured Obligations of the Canadian Borrower (excluding Obligations of the Canadian Borrower arising under Article X of this Agreement), such Subsidiary Guaranty or joinder to be accompanied by this Section 5.09appropriate corporate resolutions, other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent.
(iiic) with respect to During any Collateral Period, if any Person other property than an Affected Subsidiary is or assets acquired after becomes a Material Domestic Subsidiary, then the Closing Date or with respect to Company shall, as promptly as possible but in any New Loan Party, the Loan Parties shall have forty-five event within thirty (45) days, or ninety (9030) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretoAgent) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case if earlier, no later than the date on which such later date as may be agreed upon by Subsidiary Guarantees any other Material Indebtedness, provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall cause each such Domestic Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a joinder to the Security Agreement (in the exercise of its reasonable discretion with respect thereto)form contemplated thereby) pursuant to which such Domestic Subsidiary agrees to be bound by the terms and provisions thereof, and (iv) no Loan Party shall have any obligation the Security Agreement to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rightsbe accompanied by appropriate corporate resolutions, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant corporate documentation and legal opinions in form and substance reasonably satisfactory to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Administrative Agent and its counsel.
Appears in 1 contract
Samples: Credit Agreement (Belden Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower Borrowers as a Material Subsidiary) (a “New Loan Party”), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrower Borrowers shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign SubsidiarySubsidiary (other than any Foreign Subsidiary organized under the laws of Canada (or any province, territory or subdivision thereof)) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty and the U.S. US Security Agreement and and/or each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty, the US Security Agreement (if applicable) and and/or other applicable Collateral Document, as applicable, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers (Ai) will cause the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrowers or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrowers or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f(except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof)), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrowers; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco the Borrowers will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableregulations.
(d) Subject to the Agreed Security Principles and Section 5.09(f(except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof), other than with respect to such Loan Parties as expressly provided in the final proviso to the definition of Agreed Security Principles), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish the BorrowersIrish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrowers after the Closing Date, Irish Holdco the Borrowers shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor Guaranty (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) Principles (other than any Foreign Subsidiary organized under the laws of Canada (or any provinces, territories or subdivisions thereof)), and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Within 90 days of the Closing Date (which may be extended in the Administrative Agent’s sole discretion), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers shall procure the execution and delivery of, and deliver to the Administrative Agent, Mortgages and Mortgage Instruments related thereto reasonably required by the Administrative Agent with respect to real property (excluding Excluded Assets) owned by any Domestic Subsidiary that is a Loan Party or any Canadian Domiciled Loan Party.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (Ai) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, Collateral and (Bii) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United StatesStates or Canada, except with respect to Foreign (x) Material Intellectual Property (as defined in the Agreed Security Principles) issued or registered by, or applied-for in, a Covered Jurisdiction, Luxembourg or the Republic of Ireland and (Cy) Material Intellectual Property that is either (1) acquired in an acquisition after the Closing Date or (2) transferred to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest otherwise disposed of in any letter of credit rights, other than the filing favor of a UCC financing statement Foreign Loan Party from one or more Loan Parties that are Domestic Subsidiaries, Canadian Domiciled Loan Parties or Foreign Loan Parties that hold Material Intellectual Property pursuant to preceding clauses (x) or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawy)(1).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within Subject to the time periods specified Limited Conditionality provision and the terms, limitations and exceptions set forth in the applicable Collateral Documents and this Section 5.09(f5.09, within thirty (30) below days (or such later date as may be agreed upon by the Administrative Agent) after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asSubsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) Limited Conditionality Provision and the terms, limitations and exceptions set forth in the applicable Collateral Documents and this Section 5.09(f)5.09, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding any Excluded AssetsAssets or other assets not required to be Collateral) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) Limited Conditionality Provision and the terms, limitations and exceptions set forth in the applicable Collateral Documents and this Section 5.09(f)5.09, Irish Holdco (A) the Borrower will cause (i) 100% of, in the case of Domestic Subsidiaries, and (ii) 65%, in the case of Foreign Subsidiaries, of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the Limited Conditionality Provision and the terms, limitations, and exceptions set forth herein or in any Collateral Document, all at the expense of Irish Holdco; provided thatthe Borrower, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations each case to the extent applicablerequired by, and subject to the limitations and exceptions of, this Agreement and the other Loan Documents.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including any real property or improvements thereto or any interest therein, but excluding any Excluded Assets or other assets not required to be Collateral) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower. Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by the Borrower or any other Loan Party after the Effective Date until (1) the date that occurs fourteen (14) days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically on an Electronic System) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such real property is located, evidence of required flood insurance and (2) the Administrative Agent shall have received written confirmation from the Impacted Lender that flood insurance due diligence and flood insurance compliance has been completed by the Impacted Lender (such written confirmation not to be unreasonably conditioned, withheld or delayed).
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with Within thirty (30) days following the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each Effective Date (or such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, later date as the Administrative Agent may reasonably requestagrees to in its sole discretion), all in form and substance reasonably satisfactory the Borrower shall deliver to the Administrative Agent certificates of insurance listing the Administrative Agent as (x) lender loss payee for the property casualty insurance policies of the Loan Parties, together with long-form lender loss payable endorsements, as appropriate and its counsel.
(fy) additional insured with respect to the liability insurance of the Loan Parties, together with additional insured endorsements. Notwithstanding anything to the contrary herein or in any other Loan DocumentDocuments, such certificates of insurance and endorsements shall not be required to be delivered until the date that is thirty (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (9030) days after following the acquisition of the applicable real property Effective Date (or such later date as may be agreed upon by the Administrative Agent agrees to in the exercise of its reasonable discretion with respect theretosole discretion).
(f) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-Within five (455) days, or ninety (90) days in Business Days following the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party Effective Date (or such later date as may be agreed upon by the Administrative Agent agrees to in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Datesole discretion), the Loan Parties Borrower shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party deliver to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto)UCC, tax lien and (iv) no name variation search reports naming each Loan Party shall have any obligation from the appropriate offices in relevant jurisdictions, to the extent such search reports were not previously delivered on or prior to the Effective Date.
(Ag) enter into control agreements with respect to any security interest Notwithstanding the foregoing, the parties hereto acknowledge and agree that (i) in circumstances where the Administrative Agent reasonably determines that the cost or lien in any Deposit Account effort of obtaining or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect perfecting a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant asset that constitutes Collateral is excessive in relation to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect benefit afforded to the applicable anti-assignment provisions Secured Parties thereby, the Administrative Agent may exclude such Collateral from the creation and perfection requirements set forth in this Agreement and the other Loan Documents and (ii) the Administrative Agent may grant extensions of time for the UCC creation or perfection of Liens in particular property (including extensions of time beyond the Effective Date) where it determines that such creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other applicable law)Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Almost Family Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as a “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and ,” the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Person to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary Person agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations to the extent required by, and in accordance with with, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in each case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (or, in the case of Acterna France SAS, 14.52% of its Equity Interests) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations to the extent required by, and in accordance with with, the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Material Foreign Subsidiary shall be required hereunder until the date that is sixty (60) days following the later of (i) the Effective Date, (ii) the date of acquisition or formation of such Material Foreign Subsidiary, or (iii) such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto.
(c) The Borrower will, or together with the Subsidiary Guarantors will, maintain at all times an aggregate amount of at least $200,000,000 in cash and Permitted Investments in accounts that are subject to tri-party control agreements with (Band in form and substance reasonably satisfactory to) the Administrative Agent.
(d) Without limiting the foregoing, the Borrower will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrower; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with that it is understood and agreed that neither the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of Borrower nor any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary will be required to (i) to execute a Joinder Agreement substantially obtain bailee or landlord waivers in respect of any location where Inventory (as defined in the form of Exhibit D (each a “Joinder Security Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein is stored or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) record with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property United States Patent and Trademark Office (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretoany analogous domestic or foreign agency or office) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account Patent or Securities Account Trademark (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawSecurity Agreement).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than thirty (30) days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded (including pursuant to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary) or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Restricted Domestic Subsidiary pursuant to the definition of “Material Restricted Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Restricted Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. Notwithstanding anything to the contrary set forth herein, no Restricted Subsidiary constituting an Excluded Subsidiary shall be required to be a Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) limitations contained in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) Collateral to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents. Notwithstanding the foregoing, (i) no Loan Party shall be required to provide any mortgage, landlord waiver, collateral access agreement, estoppel or deed of trust with respect to any real property (including leasehold interests), (ii) no Loan Party shall be required to obtain the consent of any governmental authority or third party, (iii) no actions shall be required to perfect a security interest in letter of credit rights, other than a filing of a UCC financing statement, (iv) no deposit account or securities account, or similar, control agreements shall be required, (v) assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such other pledge and security documents assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by the Administrative Agent shall reasonably request (in consultation with the Borrower) and (Bvi) willthe Borrower and Subsidiary Guarantors shall not be required, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by nor shall the Administrative Agent; provided Agent be authorized, to take any action in any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside the U.S. or to perfect any security interests in such assets, including, without limitation, any intellectual property registered in any non-U.S. jurisdiction or any equity interests of any subsidiaries organized in any non-U.S. jurisdiction (it being understood that with respect to jurisdictions that impose mortgage recording taxes, there shall be no security agreements or pledge agreements governed under the applicable Mortgages and Mortgage Instruments and laws of any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentnon-U.S. jurisdiction).
(c) Without limiting the foregoing, but subject to the Agreed Security Principles limitations in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will, and will cause each other Loan Party Restricted Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent Agents such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent Agents may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (including, for the avoidance of doubt, in connection with the disclosure of any additional assets constituting Collateral pursuant to any updates of the exhibits to the Security Agreement as required thereby), all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asSubsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and Person. The Borrower shall cause each such Subsidiary which is a Domestic Subsidiary (subject to the Agreed Security Principles, in the case other than a Domestic Subsidiary that is a direct or indirect Subsidiary of any a Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and to deliver the Collateral Agent a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counselthe Collateral Agent.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such joinders to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, cause all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding Excluded Assetsreal property) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis(including amendments, restatements, supplements or other modifications to the Collateral Documents in effect prior to the Effective Date, in each case to the extent, and within such time period, as is reasonably requested by the Collateral Agent), subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Subsidiary qualifying as a Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents; provided that no such pledge of the Equity Interests of, or provision of Collateral by, a Foreign Subsidiary shall be required hereunder to the extent such other pledge or Collateral would create a Deemed Dividend Problem, is prohibited by applicable law or the Collateral Agent and security documents as its counsel reasonably determine that, in light of the Administrative Agent shall reasonably request cost and expense associated therewith, such pledge or Collateral would be unduly burdensome or not provide material Pledged Equity or Collateral for the benefit of the Holders of Secured Obligations pursuant to legally binding, valid and enforceable Pledge Agreements, and (Bii) will, and will cause each other Subsidiary qualifying as a Loan Party to, deliver Mortgages and Mortgage Instruments with respect amendments, restatements, supplements or other modifications to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party foreign law governed Pledge Agreements existing on the Effective Date, in each case to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent; provided . Notwithstanding the foregoing, no new foreign law governed Pledge Agreements and no amendments, restatements, supplements or other modifications to foreign law governed Pledge Agreements existing on the Effective Date, in each case are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Collateral Agent may agree in the exercise of its reasonable discretion with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentthereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject Effective as of the Effective Date, all of the parties hereto acknowledge and agree that each of the “Mortgages” entered into prior to the Agreed Security Principles Effective Date pursuant to (and Section 5.09(f)as defined in) the Existing Credit Agreement, if any assets (including any real property shall be terminated and of no further force or improvements thereto or any interest therein) are acquired by a Loan Party effect (other than Excluded Assets and assets constituting Collateral that become subject to any provisions thereof which expressly survive such termination in accordance with the Lien in favor of the Administrative Agent upon acquisition terms thereof), Irish Holdco will notify and the Administrative Agent thereofCollateral Agent’s Liens under such Mortgages shall be released, and, if requested by in each case as of the Administrative Agent, Irish Holdco will cause Effective Date. Each of the Lenders agree that the Agents may execute and deliver all such assets to be subjected to a Lien securing the Secured Obligations documents and will take, and cause the other Loan Parties to take, take all such actions as shall may be reasonably necessary or reasonably requested by appropriate in order to more effectively confirm or carry out such release of the Administrative Agent Collateral Agent’s Liens under such Mortgages, and the Agents agree to grant so execute such documents, without recourse or warranty and perfect to take such Liens, including actions described in paragraph (b) of this Section 5.09actions, all at the expense of Irish HoldcoCompany’s expense.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Samples: Credit Agreement (Photronics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower Borrowers as a Material Subsidiary) (a “New Loan Party”), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrower Borrowers shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign SubsidiarySubsidiary (other than any Foreign Subsidiary organized under the laws of Canada (or any province, territory or subdivision thereof)) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty and the U.S. US Security Agreement and and/or each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty, the US Security Agreement (if applicable) and and/or other applicable Collateral Document, as applicable, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers (Ai) will cause the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrowers or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrowers or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f(except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof)), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrowers; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco the Borrowers will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableregulations.
(d) Subject to the Agreed Security Principles and Section 5.09(f(except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof), other than with respect to such Loan Parties as expressly provided in the final proviso to the definition of Agreed Security Principles), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco the Borrowers will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrowers after the Closing Date, Irish Holdco the Borrowers shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor Guaranty (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) Principles (other than any Foreign Subsidiary organized under the laws of Canada (or any provinces, territories or subdivisions thereof)), and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Within 90 days of the Closing Date (which may be extended in the Administrative Agent’s sole discretion), the Irish Holdco, the Irish Sub Holdco, the Lux Holdco and the Borrowers shall procure the execution and delivery of, and deliver to the Administrative Agent, Mortgages and Mortgage Instruments related thereto reasonably required by the Administrative Agent with respect to real property (excluding Excluded Assets) owned by any Domestic Subsidiary that is a Loan Party or any Canadian Domiciled Loan Party.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (Ai) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, Collateral and (Bii) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United StatesStates or Canada, except with respect to Foreign (x) Material Intellectual Property (as defined in the Agreed Security Principles) issued or registered by, or applied-for in, a Covered Jurisdiction, Luxembourg or the Republic of Ireland and (Cy) Material Intellectual Property that is either (1) acquired in an acquisition after the Closing Date or (2) transferred to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest otherwise disposed of in any letter of credit rights, other than the filing favor of a UCC financing statement Foreign Loan Party from one or more Loan Parties that are Domestic Subsidiaries, Canadian Domiciled Loan Parties or Foreign Loan Parties that hold Material Intellectual Property pursuant to preceding clauses (x) or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawy)(1).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not (other than an Excluded Subsidiary Subsidiary) or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be no longer an Excluded Subsidiary (including by qualifying independently asSubsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (and, subject to the Agreed Security PrinciplesGaming Laws and receipt of applicable Gaming Approvals, in the case of any Foreign Subsidiary) shall cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder joinder to the Guaranty and Collateral Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Guaranty and Collateral Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel, as may reasonably be requested by the Administrative Agent.
(ib) Subject to Gaming Laws, receipt of applicable Gaming Approvals and the Agreed Security Principles other limitations set forth in the Collateral Documents (where applicable) and Section 5.09(fincluding the limitations on granting liens on Excluded Property as set forth therein), Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority (subject to Permitted Prior Liens), perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and but subject to Gaming Laws, receipt of applicable Gaming Approvals and the Agreed Security Principles other limitations set forth in the Collateral Documents (where applicable) and Section 5.09(fincluding the limitations on granting liens on Excluded Property as set forth therein), Irish Holdco the Borrower (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first prioritypriority (subject to Permitted Prior Liens), perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, within 60 days after the acquisition thereof or such longer period as the Administrative Agent may approve in its reasonable discretion, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such other Loan Party to the extent, and within such time period as is, extent reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to Gaming Laws, receipt of applicable Gaming Approvals and the Agreed Security Principles and Section 5.09(f)other limitations set forth in the Collateral Documents, Irish Holdco the Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to Without limiting the Agreed Security Principles foregoing, the Borrower will, and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a will cause each other Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof)to, Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, promptly take all such actions as shall be necessary or reasonably requested by the Administrative Agent to grant address, correct and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of remediate any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or material matters identified in any Phase I or Phase II environmental site assessments or other Loan Document, (i) any deliverables environmental reports delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any owned or leased real property acquired after of the Closing DateBorrower or any Subsidiary that is a Mortgaged Property or is intended to become a Mortgaged Property, including without limitation those described on Schedule 5.15 hereto. If the Borrower fails to promptly take, or cause the other Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or to promptly take, any such later date as may be agreed upon actions reasonably requested by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take foregoing sentence, then the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) daysAdministrative Agent, or ninety (90) days in the case of the Equity Interestsits designee, property or assets ofmay, or actions required to but shall not be taken byobligated to, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by at the Administrative Agent in the exercise of its reasonable discretion with respect thereto), sole cost and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions expense of the UCC or other applicable law)Borrower.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower Parent as a Material Subsidiary) Subsidiary (or as a “New Loan Party”Subsidiary Guarantor), Irish Holdco and the Borrower Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign SubsidiarySubsidiary (other than any Foreign Subsidiary organized under the laws of Canada or any province, territory or subdivision thereof)) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty and the U.S. US Security Agreement and and/or each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty, the US Security Agreement (if applicable) and and/or other applicable Collateral Document, as applicable, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent Collateral Trustee for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent (Ai) will cause the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrowers or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent Trustee to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrowers or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof)) and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent Trustee such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrowers; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco the Borrowers will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableregulations.
(d) Subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof) and Section 5.09(f), other than with respect to such Loan Parties as expressly provided in the final proviso to the definition of Agreed Security Principles), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish HoldcoParent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrowers after the Closing Date, Irish Holdco the Borrowers shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor (Guaranty in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) Principles (other than any Foreign Subsidiary organized under the laws of Canada (or any provinces or territories thereof)), and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to Notwithstanding anything in this Section 5.09 as of the Closing Date shall be subject Agreement to the penultimate paragraph of Section 4.01contrary, (ii) in no event shall any Mortgage be required to be executed and delivered with respect to any real property acquired constituting Collateral, unless and until the Administrative Agent has so requested (and the conditions set forth in this Section 5.09(f) and in Section 5.09(c) have been met). The Administrative Agent shall not deliver such request with respect to any such real property located in the United States and its territories until (x) a date that is at least 45 Business Days after the Closing Date, Administrative Agent has delivered to the Loan Parties shall have ninety Lenders (90A) days after written notice of its intention to request delivery and execution of the acquisition applicable Mortgage and (B) (1) a completed standard “life of loan” flood hazard determination form and such other documents as any Lender may reasonably request to complete its flood insurance due diligence with respect to the applicable real property; (2) if the improvements to the applicable real property are determined to have special flood hazards by the Federal Emergency Management Agency, a notification to the applicable Loan Party (“Loan Party Notice”) and (if applicable) notification to the applicable Loan Party that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community where such real property is located does not participate in the NFIP; (3) documentation evidencing the applicable Loan Party’s receipt of the Loan Party Notice; and (4) if the Loan Party Notice is required to be given and, to the extent flood insurance is required by any applicable requirement of law or any Lender’s written regulatory or compliance procedures and flood insurance is available in the community in which such later date as may real property is located, evidence of a flood insurance policy in compliance with the Flood Insurance Laws (including without limitation, in an amount required under the Flood Insurance Laws) and (y) all Lenders shall have consented to the making of such request; provided that a Lender shall be agreed upon by deemed to have so consented unless such Lender objects to the execution and delivery of such Mortgage in writing to the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired no later than 45 Business Days after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case delivery of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party documentation and written notice described in clauses (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretox)(A) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)above.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required as, and to the extent, set forth in the Agreed Security Principles.
(ib) Subject to Section 6.09(e) and the Agreed Security Principles (where applicable) and Section 5.09(f)Principles, Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and but subject to Section 6.09(e) and the Agreed Security Principles Principles, Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but in any event subject to the Agreed Security Principles and Section 5.09(f)Principles, Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) with an aggregate fair market value greater than or equal to $10,000,000 are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent and in each case, subject to the Agreed Security Principles; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions outside any Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions and, with respect to U.S. trademark registrations or application filed under 15 U.S.C. Section 1141, WIPO) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) assets of such Loan Party with a fair market value less than $10,000,000 located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above with respect to Mortgages, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured or the value of the Collateral subject to such Liens and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the Lead Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition thereof or reflecting that such Person becomes has become a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary) (a Subsidiary Guarantor pursuant to the definition of “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, within the time periods set forth below with respect to real property, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.16 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Subsidiary qualifying as a Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, priority and perfected (subject in each case to the qualifications specified in Section 3.16 with respect to priority and perfection) Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents; provided that no such pledge of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent such pledge is prohibited by applicable law or the Collateral Agent and its counsel reasonably determine that, in light of the cost and expense associated therewith, such other pledge would be unduly burdensome or not provide material Pledged Equity for the benefit of the Holders of Secured Obligations pursuant to legally binding, valid and security documents as the Administrative Agent shall reasonably request enforceable Pledge Agreements, and (Bii) will, and will cause each other Subsidiary qualifying as a Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Company or such Loan Party Subsidiary to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable Company agrees to use its best efforts to deliver such Mortgages and Mortgage Instruments and any other as soon as practicable after December 12, 2008 but in no event later than February 5, 2009 or such later date as the Collateral Documents shall not secure indebtedness Agent may agree in an amount exceeding 105% the exercise of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentits reasonable discretion with respect thereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including If any real property or improvements thereto or any interest therein) interests therein are acquired by a Loan Party after December 12, 2008 (other than Excluded Assets and assets already constituting Collateral that become subject to under the Lien in favor of the Administrative Agent upon acquisition thereofSecurity Agreement or any Mortgage), Irish Holdco the Company will notify the Administrative Collateral Agent thereof, and, if requested by the Administrative Collateral Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Collateral Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(ey) Except with respect The Credit Agreement is amended to a Subsidiary that is an Excluded Subsidiary, concurrently with delete the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) existing Section 5.10 and to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, delete all in form and substance reasonably satisfactory to the Administrative Agent and its counselreferences thereto.
(fz) Notwithstanding anything The Credit Agreement is amended to the contrary herein or in any other Loan Documentinsert new Sections 5.10, (i) any deliverables delivered pursuant to this Section 5.09 5.11 and 5.12 thereto as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).follows:
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary) (a Subsidiary Guarantor pursuant to the definition of “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, within the time periods set forth below with respect to real property, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis(including amendments, restatements, supplements or other modifications to the Collateral Documents in effect prior to the Effective Date, in each case to the extent, and within such time period, as is reasonably requested by the Collateral Agent), subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Subsidiary qualifying as a Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents; provided that no such pledge of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent such pledge is prohibited by applicable law or the Collateral Agent and its counsel reasonably determine that, in light of the cost and expense associated therewith, such other pledge would be unduly burdensome or not provide material Pledged Equity for the benefit of the Holders of Secured Obligations pursuant to legally binding, valid and security documents as the Administrative Agent shall reasonably request enforceable Pledge Agreements, and (Bii) will, and will cause each other Subsidiary qualifying as a Loan Party to, deliver Mortgages and amendments, restatements, supplements or other modifications to the Mortgages, Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party and foreign law governed Pledge Agreements existing on the Effective Date to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent; provided that . Notwithstanding the foregoing, no amendments, restatements, supplements or other modifications to foreign law governed Pledge Agreements existing on the Effective Date are required to be delivered hereunder until March 31, 2010 or such later date as the Collateral Agent may agree in the exercise of its reasonable discretion with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentthereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including If any real property or improvements thereto or any interest therein) interests therein are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets already constituting Collateral that become subject to under the Lien in favor of the Administrative Agent upon acquisition thereofSecurity Agreement or any Mortgage), Irish Holdco the Company will notify the Administrative Collateral Agent thereof, and, if requested by the Administrative Collateral Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Collateral Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets personal property of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, within forty-five (45) days after the date on which the Revolving Outstandings exceed $25,000,000 (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agent; provided that together with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative AgentInstruments.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdco.
(e) Except the Borrower; provided that, with respect to a Subsidiary that is an Excluded SubsidiaryEquity Interests, concurrently with such actions will be limited to those specified in clause (b) above. Notwithstanding the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Dateforegoing, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Dateproperty, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09including Mortgaged Property, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) ” (a “New Loan Party”in each case, other than any Excluded Subsidiary), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than the Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priorityperfected Lien, perfected Lien subject in any case to Liens permitted by Section 6.02, in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party applicable Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereofthereof in accordance with the terms of the Collateral Documents, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (Ai) enter into control agreements other than with respect to any First Tier Foreign Subsidiary that is or is the direct or indirect parent of a Specified Foreign Subsidiary, perfect any security interest or lien in any Deposit Account or Securities Account (Equity Interests of a Person organized in each case, as defined in any jurisdiction outside the UCC) United States included in the CollateralCollateral in any jurisdiction other than in the United States, (Bii) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (Ciii) to obtain any landlord waivers, estoppels or collateral access letters, (Div) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (Ev) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Medivation, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required as, and to the extent, set forth in the Agreed Security Principles.
(ib) Subject to Section 6.09(e) and the Agreed Security Principles (where applicable) and Section 5.09(f)Principles, Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and but subject to Section 6.09(e) and the Agreed Security Principles Principles, Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but in any event subject to the Agreed Security Principles and Section 5.09(f)Principles, Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) with an aggregate fair market value greater than or equal to $10,000,000 (any real property with an aggregate fair market value greater than or equal to $10,000,000 is referred to herein as a “Material Real Property”) are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent and in each case, subject to the Agreed Security Principles; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section; provided, however, that the applicable Loan Party shall not execute and deliver any Mortgage on any Material Real Property until (x) at least 90 days (or such shorter period as is acceptable to the Administrative Agent in its sole discretion) from the date the Lead Borrower provides the Administrative Agent with prior written notice of such acquisition of such Material Real Property, (y) each Lender has received, at least ten Business Days prior to such execution and delivery, a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination and for any Mortgaged Property with a building in a special flood hazard area, an acknowledgment by the applicable Loan Party, and evidence of flood insurance, as may be required pursuant to the Flood Laws and (z) the Borrower has received confirmation from the Administrative Agent that flood insurance due diligence and flood insurance compliance has been completed.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions outside any Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions and, with respect to U.S. trademark registrations or application filed under 15 U.S.C. Section 1141, WIPO) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) assets of such Loan Party with a fair market value less than $10,000,000 located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above with respect to Mortgages, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured or the value of the Collateral subject to such Liens and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the Lead Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition thereof or reflecting that such Person becomes has become a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary) (a Subsidiary Guarantor pursuant to the definition of “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, within the time periods set forth below with respect to real property, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis(including amendments, restatements, supplements or other modifications to the Collateral Documents in effect prior to the Effective Date, in each case to the extent, and within such time period, as is reasonably requested by the Collateral Agent), subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Subsidiary qualifying as a Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents; provided that no such pledge of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent such pledge is prohibited by applicable law or the Collateral Agent and its counsel reasonably determine that, in light of the cost and expense associated therewith, such other pledge would be unduly burdensome or not provide material Pledged Equity for the benefit of the Holders of Secured Obligations pursuant to legally binding, valid and security documents as the Administrative Agent shall reasonably request enforceable Pledge Agreements, and (Bii) will, and will cause each other Subsidiary qualifying as a Loan Party to, deliver (x) Mortgages and Mortgage Instruments with respect to the real property located at 00000 Xxxxx Xxxxxxx Xxx, Xxxxx, Xxxxx 00000 and (excluding Excluded Assetsy) owned by Irish Holdco amendments, restatements, supplements or such Loan Party other modifications to the Mortgages, Mortgage Instruments and foreign law governed Pledge Agreements existing on the Effective Date, in each case to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable no new Mortgages and Mortgage Instruments and any no amendments, restatements, supplements or other modifications to Mortgages, Mortgage Instruments and foreign law governed Pledge Agreements existing on the Effective Date are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Collateral Documents shall not secure indebtedness Agent may agree in an amount exceeding 105% the exercise of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentits reasonable discretion with respect thereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, Mortgage Instruments, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including If any real property or improvements thereto or any interest therein) interests therein are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets already constituting Collateral that become subject to under the Lien in favor of the Administrative Agent upon acquisition thereofSecurity Agreement or any Mortgage), Irish Holdco the Company will notify the Administrative Collateral Agent thereof, and, if requested by the Administrative Collateral Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Collateral Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definitions of “Material Domestic Subsidiary) (a ” and “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth forth, if requested by the Administrative Agent, information in reasonable detail describing the material assets of such Person Person, and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to each of the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Material Domestic Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. such Subsidiary Guaranty and Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed), other than any real property (unless required pursuant to paragraph (c) of this Section), to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and the Borrower will (subject to the Agreed terms and conditions of the Security Principles Agreement, including the definition of “Excluded Collateral” set forth therein) (where applicablei) and Section 5.09(f), Irish Holdco (A) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request (including, without limitation, applicable local law pledge agreements), subject in each case to Liens permitted by Section 6.02, and (Bii) if required pursuant to paragraph (c) of this Section, will, and will cause each other Loan Party Subsidiary Guarantor to, promptly deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect . The Borrower will deliver, or will cause ENSCO 667 Limited to jurisdictions that impose mortgage recording taxesdeliver, within thirty (30) days (or such later date as may be agreed upon by the applicable Mortgages Administrative Agent) after the Effective Date, (i) a favorable written opinion (addressed to the Administrative Agent and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% the Lenders) of a law firm reasonably acceptable to the Administrative Agent, addressing the Administrative Agent’s Lien on the Applicable Pledge Percentage of the fair market value issued and outstanding Equity Interests of ENSCO 667 Limited, in form and substance reasonably acceptable to the Administrative Agent, and (ii) a local law pledge agreement and such other security documents as the Administrative Agent may reasonably request to cause the Applicable Pledge Percentage of the applicable mortgaged propertyissued and outstanding Equity Interests of ENSCO 667 Limited to be subject to a first priority, as reasonably determined perfected Lien in good faith by favor of the Loan Parties Administrative Agent to secure the Secured Obligations, all in form and substance reasonably acceptable to the Administrative Agent.
(c) At any time prior to the Maturity Date, upon notice from the Administrative Agent to the Borrower, the Borrower shall cause, and shall cause each other Loan Party to cause, all of its real property that has not previously been provided as Collateral (all with such exceptions as to materiality, cost and material credit support, in each case, to the extent determined in the reasonable discretion of the Administrative Agent) to be subject at all times to first priority, perfected Liens in favor of or for the benefit of the Administrative Agent, for the benefit of the Holders of Secured Obligations, subject in each case to Liens permitted by Section 6.02, all within thirty (30) days (or such later date as may be agreed to by the Administrative Agent in its sole discretion) following the Borrower’s receipt of the Administrative Agent’s notice.
(d) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Material Domestic Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(de) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if reasonably requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bd) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Innerworkings Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to Section 6.14, the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Borrower will cause, and will cause each other Loan Party to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to Section 6.14, the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agent; provided that together with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative AgentInstruments.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrower; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(e) Except with respect to a Subsidiary that is an Excluded SubsidiaryNotwithstanding the foregoing, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Dateproperty, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09including Mortgaged Property, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within sixty (60) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after (i) any Person (other than an existing Subsidiary) becomes a Restricted Wholly-Owned Domestic Subsidiary that is not an Excluded qualifies as a Material Domestic Subsidiary or (ii) the end of a fiscal quarter during which any Excluded Wholly-Owned Domestic Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. such Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably to the extent requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counselAgent.
(ib) Subject to Each of Ultimate Parent and the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Borrower will cause, and will cause each other Loan Party to cause, all of its owned property constituting Collateral (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected (to the extent any such Lien may be perfected under the UCC) Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations Obligations, in accordance with each case, to the extent required by the terms and conditions of the Collateral Loan Documents on a first priority basis, and subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, each of Ultimate Parent and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of the Borrower and each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien (in each case, to the extent governed by the UCC and in any case subject to Liens permitted by Section 6.02) in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other Documents. Notwithstanding the foregoing, no foreign law governed pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with agreement in respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value Equity Interests of a Foreign Subsidiary shall be required (without limiting the applicable mortgaged property, as reasonably determined last sentence in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentclause (c) below).
(c) Without limiting the foregoing, but subject to each of Ultimate Parent and the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations Borrower. Notwithstanding the foregoing or anything to the extent applicable.
(d) Subject to contrary in the Agreed Security Principles and Section 5.09(f)Loan Documents, if no actions in any assets (including any real property jurisdiction outside the United States or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested required by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing laws of any jurisdiction outside the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as United States shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or create any security interests in any other Loan Document, (i) asset of Ultimate Parent or any deliverables delivered pursuant to this Section 5.09 as of Subsidiary physically located in any jurisdiction outside the Closing Date shall be United States or subject to the penultimate paragraph a document of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon title governed by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case laws of any Equity Interests, property jurisdiction outside the United States or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of interests under such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)laws.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Affected Foreign Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently qualifies as, or being is designated by the Borrower as or the Administrative Agent as, a “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Person to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary Person agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject to no other exclusions for certain personal property as set forth in the Collateral Documents and to Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to (i) the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request, and (ii) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary governed by the jurisdiction of organization of each Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Administrative Agent’s request therefor (or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto), and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instrumentsinstruments as required pursuant to the terms of the Collateral Documents, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to At any time the Borrower determines that a Subsidiary that Guarantor is an Excluded no longer required to be a Subsidiary Guarantor under the definition of “Material Subsidiary”, concurrently with including upon the designation addition of any another Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after Subsidiary Guarantor, the Closing Date, Irish Holdco Borrower shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as provide the Administrative Agent may reasonably requestwith written notice thereof setting forth information in reasonable detail describing why such Subsidiary is no longer required to be a Subsidiary Guarantor. Upon the Administrative Agent’s reasonable determination that such Subsidiary is no longer required to be a Subsidiary Guarantor, all in form and substance reasonably satisfactory to the Administrative Agent shall, at the Borrower’s expense, release such Subsidiary from the Subsidiary Guaranty and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered Collateral Documents pursuant to this Section 5.09 such documentation as of the Closing Date Borrower shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than the Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priorityperfected Lien, perfected Lien subject in any case to Liens permitted by Section 6.02, in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party applicable Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereofthereof in accordance with the terms of the Collateral Documents, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (Ai) enter into control agreements other than with respect to any First Tier Foreign Subsidiary that is or is the direct or indirect parent of a Specified Foreign Subsidiary, perfect any security interest or lien in any Deposit Account or Securities Account (Equity Interests of a Person organized in each case, as defined in any jurisdiction outside the UCC) United States included in the CollateralCollateral in any jurisdiction other than in the United States, (Bii) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (Ciii) to obtain any landlord waivers, estoppels or collateral access letters, (Div) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (Ev) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Medivation, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as a Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens permitted by Section 6.02 (and (ii) without provided further that such perfection with respect to intellectual property shall be limited to the United States). Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until 90 days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until 90 days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection the Borrower (except that such perfection with any real respect to intellectual property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations shall be limited to the extent applicableUnited States).
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. Concurrently with each delivery (aor deemed delivery) Within of Holdings’ financial statements pursuant to Section 5.01(a) or Section 5.01(b), Holdings will determine whether the time periods specified in Section 5.09(f) below after Minimum Guarantee and Pledge Requirement is then satisfied; provided, however, with respect to any Person becomes a Restricted Subsidiary that is not created or formed after the Effective Date and is required to become a Subsidiary Guarantor in connection with an Excluded Investment permitted in Section 6.04, such Subsidiary shall become a Subsidiary Guarantor within the later of (x) the time frame set forth below and (y) 60 days after such Subsidiary is created or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary acquired (including by qualifying independently as, or being designated by the Borrower such longer period as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice may agree, in its sole discretion). If the Minimum Guarantee and Pledge Requirement is not then satisfied, Holdings will promptly, notify the Administrative Agent thereof setting forth information and within 30 days (or such longer period as the Administrative Agent may agree, in reasonable detail describing its sole discretion) after the material assets end of such Person and shall fiscal quarter covered by such financial statements:
(subject to the Agreed Security Principles, in the case of any Foreign Subsidiarya) cause each such New Loan Party Subsidiary to deliver become a party to the Administrative Agent Guaranty Agreement and the Security Agreement pursuant to the completion and execution of a Subsidiary Joinder Agreement and a supplement to this Agreement and, (as such term is defined in the case of a Domestic Subsidiary, the U.S. Security Agreement Agreement) and each other applicable Collateral Document (in each case promptly take such actions to create and perfect Liens in the form contemplated thereby and modified as required in order to comply with local laws Collateral in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by terms of the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request;
(b) cause each such Subsidiary to:
(i) execute and deliver such documents, organizational documents, certificates, resolutions and opinions of the type referred to in Sections 4.01(b), (d), (e) and (f) with respect to each such Subsidiary, and its entry into the Guaranty Agreement and the Security Agreement;
(ii) execute and deliver any and all further documentation and take such further action as the Administrative Agent may deem necessary or reasonably appropriate to:
(A) grant, perfect and protect such Liens;
(B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or evidence the authority of such Loan Party Subsidiary to the extent, and within grant such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.Liens;
(cC) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which for the Administrative Agent may, from time to time, reasonably request to carry out obtain the terms and conditions full benefits of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become but subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially exclusions set forth in the form of Exhibit D (each a “Joinder Security Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.; and
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of cause the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or Interests issued by such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted Guarantor to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to Security Agreement by the applicable anti-assignment provisions of the UCC or other applicable law)owner thereof.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably to the extent requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to Holdings and the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded AssetsProperty) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Material Real Property owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to jurisdictions the extent the Administrative Agent or its counsel determines that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Guarantor to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any If assets (including any real property or improvements thereto or any interest thereintherein but only to the extent such real property constitutes Material Real Property and in any event excluding Excluded Property) are acquired by a Loan Party after the Effective Date and that shall have an aggregate acquisition cost in excess of $10,000,000 (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Samples: Credit Agreement (American Medical Systems Holdings Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within 45 days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Domestic Subsidiary or any Excluded Domestic Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Guaranty and a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate requisite organizational resolutions, other corporate organizational documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counselcounsel (but, with respect to any such legal opinion, limited to the types of matters covered in the legal opinions delivered pursuant to Section 4.01). Notwithstanding anything to the contrary in any Loan Document, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) terms, limitations and Section 5.09(f)exceptions set forth in the applicable Collateral Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether personal or real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting permitted by Section 6.02. With respect to the generality pledge of the foregoing, any Equity Interest in any Subsidiary and subject to the Agreed Security Principles (where applicable) terms, limitations and Section 5.09(f)exceptions set forth in the applicable Collateral Documents, Irish Holdco the Borrower will cause (A) will cause 100% of the issued and outstanding Equity Interests of (1) each Pledge Subsidiary that is a Domestic Subsidiary (other than Domestic Foreign Holding Companies and Subsidiaries of a Foreign Subsidiary or a Domestic Foreign Holding Company) and (2) the UK Material Subsidiary and (B) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Pledge Subsidiary (i) that is a Foreign Subsidiary (other than the UK Material Subsidiary) or (ii) that is a Domestic Foreign Holding Company, in each case which Equity Interests are directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected (subject in any case to Liens permitted by Section 6.02) Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as Documents. Without limiting the Administrative Agent shall reasonably request and (B) generality of the foregoing, the Borrower will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party to Subsidiary Guarantor which does not constitute Excluded Real Property within 90 days after the extent, and within acquisition thereof (it being agreed that the Administrative Agent may extend such time period as isperiod, reasonably required in its reasonable discretion, by up to 30 days). Notwithstanding the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxesforegoing, the applicable no such Mortgages and Mortgage Instruments are required to be delivered hereunder for Excluded Real Property or and in any case until the date that is 90 days after the Effective Date (it being agreed that the Administrative Agent may extend such time period, in its reasonable discretion, by up to 30 days). Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by the Borrower or any other Collateral Documents shall Loan Party after the Effective Date until the date that occurs 21 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically on an Electronic System) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not secure indebtedness in an amount exceeding 105% available and (B) evidence of the fair market value of the applicable mortgaged property, as reasonably determined in good faith receipt by the Loan Parties Borrower of such notice; and reasonably acceptable (iii) if such notice is required to be provided to the Administrative AgentBorrower and flood insurance is available in the community in which such real property is located, evidence of required flood insurance.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, intellectual property security agreements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the terms, limitations and exceptions set forth herein or in any Collateral Document, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than (i) Excluded Assets and or (ii) assets of the type constituting Collateral under the U.S. Security Agreement or other applicable Collateral Document that either become subject to the Lien in favor of under the U.S. Security Agreement or other applicable Collateral Document upon acquisition thereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent upon acquisition thereofAgent’s Lien in such assets), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Agent and the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and and, as applicable, cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.095.09(c), all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiarythe Borrower, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Datesubject, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiaryhowever, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent terms, limitations and its counsel.
(f) Notwithstanding anything to the contrary exceptions set forth herein or in any other Loan Collateral Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agent; provided that together with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative AgentInstruments.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrower; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(e) Except with respect to a Subsidiary that is an Excluded SubsidiaryNotwithstanding the foregoing, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Dateproperty, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09including Mortgaged Property, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as as, a Material Subsidiary, which in the case of a qualification shall be the date on which financial statements have been delivered pursuant to Section 5.01 that demonstrate such qualification) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that becomes, or is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including designated by qualifying independently the Company as, or being designated by the Borrower qualifies independently as a Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary) (a ” and “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed; provided that (x) real property shall be limited to mining property and (y) such owned property shall exclude precious metal, any and all inventory or work-in-process that contains precious metal and any proceeds of the foregoing (collectively, “Precious Metal”)), to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) mining Property owned by Irish Holdco the Company or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until December 15, 2007 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until December 15, 2007 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertyHolders of Secured Obligations pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real mining property or improvements thereto or any interest thereintherein but excluding Precious Metal) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Company will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or an Excluded Tax Subsidiary, (ii) any Excluded Subsidiary (other than an Excluded Tax Subsidiary) that is not an Unrestricted Subsidiary or an Excluded Tax Subsidiary ceases to be an Excluded Subsidiary or (iii) an Excluded Tax Subsidiary that is not an Unrestricted Subsidiary or an Excluded Subsidiary ceases to be an Excluded Tax Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall promptly provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementsubstance reasonably satisfactory to, the U.S. Security Agreement (if applicable) and other applicable Collateral DocumentAdministrative Agent, to be securing payment of all the Finance Obligations of such New Loan Party under the Finance Documents, accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Each Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicabledocuments), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(dc) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets Property and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrowers will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrowers will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrowers; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(ed) Except Notwithstanding the foregoing, with respect to a Subsidiary that is an (x) any property (other than Excluded SubsidiaryProperty), concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco owned on or acquired after the Closing Date, Irish Holdco the Loan Parties shall cause each such Subsidiary have one hundred twenty (i120) to execute a Joinder Agreement substantially in days after the form date hereof or date of Exhibit D acquisition thereof as applicable, or (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iy) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing DateNew Loan Party, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case case, such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and in each case of the foregoing, to take the actions required by this Section.
(ive) no Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party shall have any obligation after the Closing Date until (x) the date that occurs 45 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor, (ii) if such real property is located in a “special flood hazard area,” (A) enter into control agreements with respect a notification to any security interest or lien in any Deposit Account or Securities Account the applicable Loan Party of that fact and (in each case, as defined in if applicable) notification to the UCC) included in the Collateral, applicable Loan Party that flood insurance is not available and (B) perfect any security interest or lien in any intellectual property included in evidence of receipt by the Collateral in any jurisdiction other than in the United Statesapplicable Loan Party of such notice, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, and (Ciii) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted if such notice is required to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect provided to the applicable anti-assignment provisions Loan Party and flood insurance is available in the community in which such real property is located, evidence of flood insurance, and (y) the UCC Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or other applicable lawdelayed).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as a Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement the Subsidiary Guaranty and, to the extent a Collateral Period is in the case of a Domestic Subsidiaryeffect, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this thereof, the Subsidiary Guaranty and the Security Agreement, the U.S. Security Agreement (if as applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times during any Collateral Period (subject to clause (f) below) to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens permitted by Section 6.02 (and (ii) without provided further that such perfection with respect to intellectual property shall be limited to the United States). Without limiting the generality of the foregoing, and subject to clause (f) below, the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times during any Collateral Period to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments during any Collateral Period with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with . Notwithstanding the foregoing, no such pledge agreement in respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to during a Collateral Period, the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.014.01 of the Existing Credit Agreement, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection the Borrower (except that such perfection with any real respect to intellectual property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations shall be limited to the extent applicableUnited States).
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party during a Collateral Period (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrower after the Closing Original Effective Date, Irish Holdco the Borrower shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor (in the case of a Foreign SubsidiaryGuaranty, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything Upon the occurrence of a Collateral Release Date, and so long as no Default is then continuing and no Liens permitted by Section 6.02(t), (u) or (v) securing Indebtedness exist with respect to the contrary herein any Collateral (or in such Liens are contemporaneously released with any other Loan Documentrelease pursuant to this clause (f)), (i) upon written request of the Borrower to the Administrative Agent (which request shall include a duly completed certificate signed by a Responsible Officer of the Borrower certifying that a Collateral Release Date has occurred and the foregoing conditions set forth in this clause (f) have occurred or shall occur contemporaneously with such release) any deliverables delivered Liens granted to the Administrative Agent on the Original Effective Date pursuant to the requirements of the foregoing clauses (a), (b), (c) and/or (d) of this Section 5.09 as (such clauses, collectively, the “Collateral Requirements”) which remain in effect at such time shall be promptly released by the Administrative Agent (and the Administrative Agent agrees to execute and deliver any documents or instruments reasonably requested by the Borrower and in form and substance reasonably satisfactory to the Administrative Agent to evidence the release of all Collateral, all at the expense of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, Borrower) and (ii) with respect to any real property acquired after the Closing Collateral Requirements shall be suspended and of no effect unless and until a subsequent Collateral Trigger Date occurs following the occurrence of a Collateral Release Date, at which time the Collateral Requirements shall again become fully effective and binding upon the Borrower and the other Loan Parties shall have ninety in all respects, and the Borrower hereby acknowledges and agrees that it will, and will cause each other Loan Party to, within thirty (9030) days after the acquisition of the applicable real property such Collateral Trigger Date (or such later date as may be agreed upon by the Administrative Agent Agent) and at the sole cost and expense of the Borrower, (x) re-grant the security interests in the exercise of its reasonable discretion Collateral pursuant to comparable Collateral Documents, all in accordance with respect theretothe Collateral Requirements and (y) deliver to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided thatsuch corporate documentation, in the case of any Equity Interestslegal opinions, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing DateMortgages, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date Mortgage Instruments and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (orpledges, in each case such later date as may be agreed upon by in accordance with the Collateral Requirements and in form and substance reasonably satisfactory to the Administrative Agent in and its counsel. Immediately upon the exercise occurrence of its reasonable discretion with respect thereto)a Collateral Release Date, each Lender party hereto shall be deemed to have consented to the release of Liens and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in suspension of the Collateral Requirements in any jurisdiction other than in the United States, except accordance with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)this Section 5.09.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within sixty (60) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Domestic Subsidiary (other than any Excluded Subsidiary) to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory toto the Administrative Agent and its counsel. At any time, at its own election, the Borrower may cause any Restricted Subsidiary of Holdings or the Borrower not otherwise required to become a Subsidiary Guarantor pursuant to the terms of this Agreement to become a Subsidiary Guarantor by delivering to the Administrative Agent a joinder to the Subsidiary Guaranty and the Security Agreement (in each case in the form contemplated thereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions thereof, such Subsidiary Guaranty and the Security Agreement to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentrequest.
(c) Without limiting the foregoing, but subject to each of Holdings and the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Restricted Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than (i) Excluded Assets and or (ii) assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect Notwithstanding anything to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially contrary in the form immediately foregoing clauses (a) through (d), (1) in no event shall notices be required to be sent to account debtors or other contractual third-parties except following the occurrence and during the continuance of Exhibit D an Event of Default, (each a “Joinder Agreement”2) to become a Subsidiary Guarantor (in the case no event shall perfection of a Foreign Subsidiary, modified as security interests be required in order to comply with local assets located in, or under the laws in accordance with of, jurisdictions located outside of the Agreed Security PrinciplesUnited States and (3) and such joinder springing account control agreements shall only be accompanied required, if requested by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably requestAgent, all in form for material deposit and substance reasonably satisfactory to the Administrative Agent and its counselsecurities accounts, other than any Excluded Account.
(f) Within thirty (30) days following the Effective Date (or such later date as the Administrative Agent agrees to in its sole discretion), the Borrower shall deliver to the Administrative Agent certificates of insurance listing the Administrative Agent as (x) lender loss payee for the property casualty insurance policies of the Borrower and the Subsidiary Guarantors, together with long-form lender loss payable endorsements, as appropriate and (y) additional insured with respect to the liability insurance of the Borrower and the Subsidiary Guarantors, together with additional insured endorsements. Notwithstanding anything to the contrary herein or in any other Loan DocumentDocuments, such certificates of insurance and endorsements shall not be required to be delivered until the date that is thirty (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (9030) days after following the acquisition of the applicable real property Effective Date (or such later date as may be agreed upon by the Administrative Agent agrees to in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawsole discretion).
Appears in 1 contract
Samples: Credit Agreement (CommerceHub, Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or after any Excluded Subsidiary that is not an Unrestricted Inactive Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asInactive Subsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall cause each such Subsidiary which is a Domestic Subsidiary (subject to the Agreed Security Principles, in the case other than any Inactive Subsidiary or any Domestic Subsidiary that is a direct or indirect Subsidiary of any a Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens permitted by Section 6.02 (and (ii) without provided further that such perfection with respect to intellectual property shall be limited to the United States). Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding other than Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is ninety (90) days following the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (a) until the date that is ninety (90) days following the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection the Borrower (except that such perfection with any real respect to intellectual property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations shall be limited to the extent applicableUnited States).
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Viropharma Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary (other than any Affected Subsidiary) to deliver to the Administrative Agent a Joinder Agreement joinder to the Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but mixed, subject to the exceptions expressly contained herein and in any Loan Document and excluding Excluded AssetsProperty) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests (other than Excluded Property) of each Pledge Subsidiary directly or indirectly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and request. Notwithstanding the foregoing, (i) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, or (B) willto the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and will cause each other Loan Party toenforceable pledge agreements, deliver Mortgages and Mortgage Instruments (ii) no control or similar arrangements shall be required with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit or such Loan Party to the extent, and within such time period as is, reasonably required securities accounts unless so requested by the Administrative Agent; provided that , (iii) the Borrower and the Loan Parties shall not be required to take any action with respect to jurisdictions that impose mortgage recording taxesthe creation or perfection of Liens under foreign law with respect to any Collateral other than foreign law governed pledge agreements described in clause (i) above, the applicable Mortgages (iv) no landlord lien waivers, estoppels or collateral access letters shall be required and Mortgage Instruments and any (v) in respect of motor vehicles subject to certificates of title, no steps other Collateral Documents than filing of UCC financing statements shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentbe required.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Material Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including excluding any real property or improvements thereto or any interest thereinExcluded Property) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under any Collateral Document that become subject to the Lien in favor of the Administrative Agent under such Collateral Document upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Angiodynamics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within sixty (60) days after the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases date by which financial statements for the relevant fiscal quarter are required to be an Excluded delivered (or such later date as may be agreed upon by the Administrative Agent), the Borrower shall (i) provide the Administrative Agent with written notice of any Subsidiary (including by qualifying independently as, becoming or being designated by the Borrower as a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) ” (a “New Loan Party”in each case, other than any Excluded Subsidiary), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiaryii) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Material Domestic Subsidiary agrees will agree to be bound by the terms and provisions of this Agreementthereof, such joinder to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, resolutions and other corporate documentation and legal opinions consistent with the resolutions and documentation delivered to the Administrative Agent on the Effective Date and with such modifications as may be reasonably requested byagreed by the Administrative Agent and the Borrower, and in each case, in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first-priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than the Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first first-priority, perfected Lien (subject to Permitted Liens) in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreements, documents or instruments (and opinions with respect thereto) in respect of the Equity Interests of a Material Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after (x) the Effective Date in the case of any Material Foreign Subsidiary that exists on the Effective Date, or (y) the date on which any other Material Foreign Subsidiary is formed or acquired (or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto), and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent and the Borrower (or their counsel) determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each applicable Subsidiary (other Loan Party than an Excluded Subsidiary) that is a Material Domestic Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be reasonably required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure the perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (and subject to the exceptions set forth herein or therein), all at the reasonable expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are Collateral is acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected to a Lien securing the Secured Obligations and will take, take and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent and reasonable to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09, all at the reasonable expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, in respect of the Borrower and its Subsidiaries, (i) no actions in any deliverables delivered non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests, including any intellectual property registered in any non-U.S. jurisdiction (it being understood and agreed that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction, provided, however, that this clause shall not impair the Administrative Agent’s ability to obtain a pledge of equity interests of certain Material Foreign Subsidiaries organized under the laws of Switzerland, Mexico and Turkey (to the extent reasonably requested by the Administrative Agent) as contemplated by this Agreement pursuant to this Section 5.09 as local law governed pledge agreements (it being understood and agreed that unless otherwise mutually agreed to be excluded by the Borrower and the Administrative Agent, the jurisdictions in respect of the Closing Date which such local law governed pledge agreements shall be subject required shall be limited to the penultimate paragraph of Section 4.01Switzerland, Mexico and Turkey) and (ii) with respect the Administrative Agent shall not require the Borrower or any of the Subsidiaries to obtain or deliver landlord waivers, estoppels, bailee letters, collateral access agreements or any real property acquired after the Closing Date, the Loan Parties shall have similar documents or instruments.
(f) Within ninety (90) days after following the acquisition of the applicable real property Effective Date (or such later date as may be agreed upon by the Administrative Agent agrees to in its sole discretion), the exercise Borrower shall deliver to the Administrative Agent insurance endorsements naming the Administrative Agent as (x) lender loss payee for the property casualty insurance policies of its reasonable discretion with respect theretothe Borrower and the Subsidiary Guarantors and (y) to take the actions required by this Section 5.09, (iii) additional insured with respect to the liability insurance of the Borrower and the Subsidiary Guarantors. Notwithstanding anything to the contrary herein or in any other property or assets acquired after Loan Documents, such endorsements shall not be required to be delivered until the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or date that is ninety (90) days in following the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party Effective Date (or such later date as may be agreed upon by the Administrative Agent agrees to in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawsole discretion).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within Prior to the time periods specified in Section 5.09(fApplicable Deadline (or such later date as may be agreed upon by the Administrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower or the Administrative Agent as, a Material Subsidiary or is designated by the Borrower as a Material Subsidiary) (a “New Loan Party”)Subsidiary Guarantor, Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
. As used in this Section 5.09, “Applicable Deadline” means (fi) Notwithstanding in the case of a Subsidiary formed or acquired as a result of an acquisition, thirty (30) days following formation or acquisition and (ii) in all other cases, sixty (60) days following the date on which the Borrower files its annual tax returns; provided that, notwithstanding anything to the contrary herein or set forth in any other Loan Documentthis Section 5.09(a), the Administrative Agent may, from time to time in its sole discretion, require that the Borrower promptly deliver, within thirty (i30) any deliverables delivered days of receipt of such request, all necessary calculations demonstrating which of its Subsidiaries would qualify as a Subsidiary Guarantor pursuant to this Section 5.09 the definition of “Material Subsidiary” and “Subsidiary Guarantor” as of the Closing Date shall be subject date of such request, and, to the penultimate paragraph of Section 4.01, (ii) with respect extent that any such Subsidiary is not then party to any real property acquired after the Closing DateSubsidiary Guaranty and the Security Agreement, the Loan Parties Applicable Deadline shall have ninety mean thirty (9030) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in Agent) following the exercise date of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms delivery of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)calculations.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Material Subsidiary that is not (other than an Excluded Subsidiary Subsidiary) or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being designated by the Borrower as a Material Subsidiary (other than an Excluded Subsidiary) (or is designated by Parent as a “New Loan Party”)Subsidiary Guarantor, Irish Holdco and the Borrower Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign SubsidiarySubsidiary (other than any Foreign Subsidiary organized under the laws of Canada or any province, territory or subdivision thereof)) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty and the U.S. US Security Agreement and and/or each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty, the US Security Agreement (if applicable) and and/or other applicable Collateral Document, as applicable, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent Collateral Trustee for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent (Ai) will cause the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrowers or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent Trustee to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrowers or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof)) and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent Trustee such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdcothe Borrowers; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco the Borrowers will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableregulations.
(d) Subject to the Agreed Security Principles (except in the case of any Loan Party organized under the laws of the United States or Canada (or any States, provinces, territories or subdivisions thereof) and Section 5.09(f), other than with respect to such Loan Parties as expressly provided in the final proviso to the definition of Agreed Security Principles), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish HoldcoParent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently Concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco the Borrowers after the Closing Date, Irish Holdco the Borrowers shall cause each such Subsidiary to deliver to the Administrative Agent a duly executed copy of the Subsidiary Guaranty (ior supplement thereto) pursuant to execute a Joinder Agreement substantially in which such Subsidiary agrees to be bound by the form terms and provisions of Exhibit D (each a “Joinder Agreement”) to become a the Subsidiary Guarantor (Guaranty in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) Principles (other than any Foreign Subsidiary organized under the laws of Canada (or any provinces or territories thereof)), and such joinder Subsidiary Guaranty (or supplement thereto) shall be accompanied by appropriate officers’ officer’s certificates, resolutions, Organizational Documents organizational documents and legal opinions of counsel, counsel as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to Notwithstanding anything in this Section 5.09 as of the Closing Date shall be subject Agreement to the penultimate paragraph of Section 4.01contrary, (ii) in no event shall any Mortgage be required to be executed and delivered with respect to any real property acquired constituting Collateral, unless and until the Administrative Agent has so requested (and the conditions set forth in this Section 5.09(f) and in Section 5.09(c) have been met). The Administrative Agent shall not deliver such request with respect to any such real property located in the United States and its territories until (x) a date that is at least 45 Business Days after the Closing Date, Administrative Agent has delivered to the Loan Parties shall have ninety Lenders (90A) days after written notice of its intention to request delivery and execution of the acquisition applicable Mortgage and (B) (1) a completed standard “life of loan” flood hazard determination form and such other documents as any Lender may reasonably request to complete its flood insurance due diligence with respect to the applicable real property; (2) if the improvements to the applicable real property are determined to have special flood hazards by the Federal Emergency Management Agency, a notification to the applicable Loan Party (“Loan Party Notice”) and (if applicable) notification to the applicable Loan Party that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community where such real property is located does not participate in the NFIP; (3) documentation evidencing the applicable Loan Party’s receipt of the Loan Party Notice; and (4) if the Loan Party Notice is required to be given and, to the extent flood insurance is required by any applicable requirement of law or any Lender’s written regulatory or compliance procedures and flood insurance is available in the community in which such later date as may real property is located, evidence of a flood insurance policy in compliance with the Flood Insurance Laws (including without limitation, in an amount required under the Flood Insurance Laws) and (y) all Lenders shall have consented to the making of such request; provided that a Lender shall be agreed upon by deemed to have so consented unless such Lender objects to the execution and delivery of such Mortgage in writing to the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired no later than 45 Business Days after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case delivery of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party documentation and written notice described in clauses (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect theretox)(A) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)above.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Endo International PLC)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within The Parent Guarantor and the time periods specified in Section 5.09(fBorrower shall, (x) below after any at all times, not later than the date on which the applicable Compliance Certificate is required to be delivered hereunder, for each other Person becomes (other than an Excluded Subsidiary) becoming a Restricted Subsidiary (whether by acquisition of a Property or otherwise) and each Subsidiary that is not an Excluded a Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases Guarantor ceasing to be an Excluded Subsidiary, and each Subsidiary of the Parent Guarantor that owns, directly or indirectly, any Equity Interest of any of such Subsidiaries, in each case during the fiscal quarter for which such Compliance Certificate is required, to the extent necessary to satisfy the Guaranty Requirement as of the last day of such fiscal quarter and (including by qualifying independently asy) at all times, not later than the date any Subsidiary of the Parent Guarantor that is a borrower or a guarantor, or being designated by otherwise has a payment obligation in respect of, any Unsecured Indebtedness, becomes a borrower or guarantor or otherwise incurs such payment obligation in respect of such Unsecured Indebtedness (other than intercompany Indebtedness between or among any of the Parent Guarantor, the Borrower as a Material Subsidiary) (a “New Loan Party”and their Subsidiaries), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject deliver or cause to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver be delivered to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisfollowing items, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, Agent: (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01an Accession Agreement executed by such Subsidiary, and (ii) the items with respect to any real property acquired after such Subsidiary that would have been delivered under Sections 6.1.(iv) through (viii) if such Subsidiary had been a Subsidiary Guarantor on the Closing DateEffective Date (in the case of Section 6.1.(iv), only to the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon extent requested by the Administrative Agent in the exercise of its reasonable discretion connection with respect thereto) to take the actions required by a new Borrowing Base Property). Nothing contained in this Section 5.09shall supersede, (iii) with respect to any other property modify or assets acquired after otherwise affect the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC Sections 4.1. or other applicable law)4.2.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within Promptly (but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent)) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Material Domestic Subsidiary (including either by qualifying independently asas such, or being designated by the Borrower Company or the Administrative Agent as a Subsidiary Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person Material Domestic Subsidiary and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Material Domestic Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Loan Party to cause, all of its owned property the Collateral (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Specified Real Property owned by Irish Holdco the Company or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect . Notwithstanding the foregoing, (i) (a) subject to jurisdictions that impose mortgage recording taxes, the applicable immediately succeeding clause (b) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until October 31, 2010 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (b) solely in an amount exceeding 105% respect of the fair market value Lancaster Property and the Brockton Property, to the extent owned by the Company or any Subsidiary, no such Mortgages and Mortgage Instruments are required to be delivered hereunder until January 30, 2011 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (ii) no such pledge agreement in respect of the applicable mortgaged propertyEquity Interests of a Foreign Subsidiary shall be required hereunder (A) until October 31, 2010 or such later date as reasonably determined the Administrative Agent may agree in good faith by the Loan Parties exercise of its reasonable discretion with respect thereto, and reasonably acceptable (B) to the extent the Administrative AgentAgent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements. Notwithstanding the foregoing, in the event that the Company reorganizes its corporate structure such that ownership of a First Tier Foreign Subsidiary’s Equity Interests is transferred to another Foreign Subsidiary, then the Lien on the Equity Interests of the transferred Foreign Subsidiary shall be released and replaced with a Lien on the Applicable Pledge Percentage of the Equity Interests of the First Tier Foreign Subsidiary that succeeds to the direct or indirect ownership of the Equity Interests in such transferred Foreign Subsidiary.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including If any real property or improvements thereto or any interest therein) are acquired by a therein which results in any parcel of owned real property of any Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to have a book value of $2,000,000 or greater after the Lien in favor of Effective Date, the Administrative Agent upon acquisition thereof), Irish Holdco Company will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected subject to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Zep Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Each Domestic Subsidiary (that is not an Excluded Immaterial Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary Domestic Subsidiary) created, acquired or held on any date subsequent to the Effective Date, shall as promptly as possible but in any event within thirty (including by qualifying independently as, 30) days (or being designated such later date as may be agreed upon by the Borrower as a Material SubsidiaryAdministrative Agent) (a “New Loan Party”)of such date, Irish Holdco execute and the Borrower shall provide deliver to the Administrative Agent with written notice thereof setting forth information in reasonable detail describing Agent, for the material assets benefit of such Person and shall (subject the Lenders, a joinder to the Agreed Security PrinciplesSubsidiary Guaranty (or, in the case of any Foreign Subsidiary) cause each such New Loan Party the initial Domestic Subsidiary to deliver become party to the Administrative Agent Subsidiary Guaranty pursuant to the terms hereof, a Joinder Subsidiary Guaranty in substantially the form attached hereto as Exhibit K), the Pledge Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof, along with any corporate governance and authorization documents, and an opinion of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions counsel as may be reasonably requested by, and in form and substance reasonably satisfactory to, deemed necessary or advisable by the Administrative Agent and its counselAgent.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Parent will cause, and will cause each other Loan Domestic Credit Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 5.09. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Parent will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than Equity Interests constituting Excluded Assets) directly owned by Irish Holdco the Parent or any other Loan Domestic Credit Party (other than Excluded Equity Interests) to be subject at all times to a first prioritypriority (subject in any case to Liens permitted by Section 5.09), perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) willrequest. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary that is governed under foreign law shall be required hereunder until the Foreign Pledge Perfection Trigger Date, at which time the Administrative Agent shall, and will cause each other Loan Party toat all times thereafter, deliver Mortgages in the discretion of the Administrative Agent or the Required Lenders, have the right to perfect, at the Parent’s cost, payable upon request therefor (including, without limitation, any foreign counsel, or foreign notary, filing, registration or similar, fees, costs or expenses), its security interest in such Pledged Securities in the respective foreign jurisdiction; provided that, the Administrative Agent and Mortgage Instruments the Required Lenders, in their reasonable discretion and in consultation with the Parent, may waive the requirements of this subsection (b) with respect to real property (excluding Excluded Assets) owned by Irish Holdco or the perfection of any such Loan Party Pledged Securities in any foreign jurisdiction to the extent, and within extent that it determines that the costs of perfecting its security interests in such time period as is, reasonably required by Pledged Securities are excessive in relation to the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable security to the Administrative Agentbe afforded thereby.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party Domestic Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Domestic Credit Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Domestic Credit Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Parent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (PTC Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than any CFC Holding Company or any Subsidiary of any CFC or CFC Holding Company) which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. For the avoidance of doubt, no CFC or CFC Holding Company (or any subsidiary of any CFC or CFC Holding Company) shall, by joinder or otherwise, become party to the Subsidiary Guaranty or the Security Agreement or otherwise be bound by the terms and provisions thereof.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and permitted by Section 5.09(f), Irish Holdco (A) 6.02. The Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than the Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first prioritypriority perfected Lien, perfected Lien subject in any case to Liens permitted by Section 6.02 in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary (other than the Applicable Pledge Percentage of the Equity Interests of a Specified Foreign Subsidiary) shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Subject to the restriction in Section 5.09(a) and (B) b), the Borrower will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than the Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereofthereof in accordance with the terms of the Collateral Documents, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (Bi) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued States or registered by, or applied-for in, a Covered Jurisdiction, (Cii) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified Administrative Agent, acting in Section 5.09(fconsultation with the Lenders) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary (other than any Excluded Subsidiary) to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than Equity Interests constituting Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, (i) no such pledge agreement in respect of the Equity Interests of a Pledge Subsidiary that is a Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree, acting in consultation with the Lenders, in the exercise of its sole discretion with respect thereto, and (B) willto the extent the Administrative Agent determines, acting in consultation with the Lenders, that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and will cause each other Loan Party to, deliver Mortgages enforceable pledge agreements and Mortgage Instruments (ii) no control or similar arrangements shall be required with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit or such Loan Party to the extent, and within such time period as is, reasonably required securities accounts unless so requested by the Administrative Agent; provided that Agent and in such case the Loan Parties shall only be required to use commercially reasonable efforts to obtain such agreements, (iii) the Borrower and the Loan Parties shall not be required to take any action with respect to jurisdictions that impose mortgage recording taxesthe creation or perfection of Liens under foreign law with respect to any Collateral other than foreign law governed pledge agreements described in clause (i) above, the applicable Mortgages (iv) no landlord lien waivers and Mortgage Instruments warehouse agreements, estoppels or collateral access letters shall be required and any (v) in respect of motor vehicles subject to certificates of title, no steps other Collateral Documents than filing of UCC financing statements shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentbe required.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such customary documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request as necessary or advisable to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest thereinother than Excluded Assets) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco subject to clause (b), the Borrower will promptly cause such assets to be subjected to a Lien securing the Secured Obligations and will promptly take, and cause the other Loan Parties to promptly take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required if (or to the extent) (A) it is limited by applicable corporate benefit, maintenance of capital, “thin capitalization” rules and financial assistance restrictions or (B) if the same would violate the fiduciary duties of their directors or contravene any legal prohibition or regulatory condition or it is generally accepted (taking into account market practice in respect of the giving of guarantees and security for financial obligations in the relevant jurisdiction) that it would result in a material risk of personal or criminal liability on the part of any officer or director of a Loan Party, provided that the relevant Loan Party shall use commercially reasonable efforts to overcome any such obstacle.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions inoutside any jurisdiction outside the United Statesof any Borrower or any jurisdiction of any Guarantor that is a Material Restricted Subsidiary (the “Covered Jurisdictions”) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction, except for stock pledge agreements with respect to Material Restricted Subsidiaries) and; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) immaterial assets of such Loan Party located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the U.S. Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety seventy-fiveninety (907590) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety seventy-five (75ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. Concurrently with each delivery (aor deemed delivery) Within of the time periods specified in Borrower's financial statements pursuant to Section 5.09(f5.01(a) below after or Section 5.01(b), the Borrower will determine whether the Minimum Guarantee and Pledge Requirement is then satisfied; provided, however, with respect to any Person becomes a Restricted Subsidiary that is not created or formed after the Effective Date and is required to become a Subsidiary Guarantor in connection with an Excluded Investment permitted in Section 6.04, such Subsidiary shall become a Subsidiary Guarantor within the later of (x) the time frame set forth below and (y) 60 days after such Subsidiary is created or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary acquired (including by qualifying independently as, or being designated by the Borrower such longer period as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice may agree, in its sole discretion). If the Minimum Guarantee and Pledge Requirement is not then satisfied, the Borrower will promptly, notify the Administrative Agent thereof setting forth information and within 30 days (or such longer period as the Administrative Agent may agree, in reasonable detail describing its sole discretion) after the material assets end of such Person and shall fiscal quarter covered by such financial statements:
(subject to the Agreed Security Principles, in the case of any Foreign Subsidiarya) cause each such New Loan Party Subsidiary to deliver become a party to the Administrative Agent Subsidiary Guaranty and the Security Agreement pursuant to the completion and execution of a Subsidiary Joinder Agreement and a supplement to this Agreement and, (as such term is defined in the case of a Domestic Subsidiary, the U.S. Security Agreement Agreement) and each other applicable Collateral Document (in each case promptly take such actions to create and perfect Liens in the form contemplated thereby and modified as required in order to comply with local laws Collateral in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by terms of the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request;
(b) cause each such Subsidiary to:
(i) execute and deliver such documents, organizational documents, certificates, resolutions and opinions of the type referred to in Sections 4.01(b), (d), (e) and (f) with respect to each such Subsidiary, and its entry into the Subsidiary Guaranty and the Security Agreement;
(ii) execute and deliver any and all further documentation and take such further action as the Administrative Agent may deem necessary or reasonably appropriate to:
(A) grant, perfect and protect such Liens;
(B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or evidence the authority of such Loan Party Subsidiary to the extent, and within grant such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.Liens;
(cC) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which for the Administrative Agent may, from time to time, reasonably request to carry out obtain the terms and conditions full benefits of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become but subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially exclusions set forth in the form of Exhibit D (each a “Joinder Security Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.; and
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of cause the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or Interests issued by such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted Guarantor to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to Security Agreement by the applicable anti-assignment provisions of the UCC or other applicable law)owner thereof.
Appears in 1 contract
Samples: Credit Agreement (Acxiom Corp)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definitions of “Material Domestic Subsidiary) (a ” and “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and and, if reasonably requested, legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower will (where applicablei) and Section 5.09(f), Irish Holdco (A) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Property owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until December 26, 2007 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until December 26, 2007 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertyHolders of Secured Obligations pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgagesmortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Priceline Com Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not (other than an Excluded Subsidiary Subsidiary) or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently asSubsidiary, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Borrowers shall provide the Administrative Agent with written notice thereof setting forth and such information as may be reasonably requested by the Administrative Agent in reasonable detail describing furtherance of the material perfection of its security interest in the assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which is a Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such joinders to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests Capital Stock of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to any parcel of real property (excluding Excluded Assets) owned by Irish Holdco the Company or such Loan Party Guarantor with a fair market value of $1,000,000 or more to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is sixty (60) days after request therefor by the Administrative Agent (or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto) and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Capital Stock of a Foreign Subsidiary shall be required hereunder (A) as of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties Effective Date and reasonably acceptable (B) to the extent the Administrative AgentAgent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrowers will, and will cause each Subsidiary (other Loan Party than an Excluded Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statementsstatements and, subject to the dollar threshold in Section 5.10(b), fixture filings, Mortgages, Mortgages and deeds of trust trust, and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest thereintherein subject to the dollar threshold in Section 5.10(b)) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco (i) the Borrowers will notify the Administrative Agent thereof, and, (ii) if requested by the Administrative Agent, Irish Holdco the Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdco.
the Borrowers, and (eiii) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiaryany real property that constitutes Collateral, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory Loan Parties will deliver to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) Lenders a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable each such real property (or together with a notice about special flood hazard area status and flood disaster assistance, which, if applicable, shall be duly executed by the applicable Loan Party relating to such later date real property and, if any such real property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09under applicable law, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case including Regulation H of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after Federal Reserve Board and the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Flood Laws.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Material Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. such Subsidiary Guaranty and Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, constituting personal, tangible, intangible, or mixed mixed, but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with and to the extent required by the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower will (where applicablei) and Section 5.09(f), Irish Holdco (A) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments deposit account control agreements or blocked account agreements with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit accounts maintained by, the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that , in each case in accordance with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages terms and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% conditions of the fair market value Security Agreement. Notwithstanding the foregoing, no pledge agreement in respect of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative AgentAgent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject Notwithstanding the foregoing or anything else in this Agreement to the Agreed Security Principles and Section 5.09(f)contrary, if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as no Permitted Joint Venture shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) required to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counselor Pledge Subsidiary hereunder.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Myr Group Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, - 130 - perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required as, and to the extent, set forth in the Agreed Security Principles.
(ib) Subject to Section 6.09(e) and the Agreed Security Principles (where applicable) and Section 5.09(f)Principles, Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and but subject to Section 6.09(e) and the Agreed Security Principles Principles, Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but in any event subject to the Agreed Security Principles and Section 5.09(f)Principles, Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) with an aggregate fair market value greater than or equal to $10,000,000 are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent and in each case, subject to the Agreed Security Principles; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated - 131 - Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions outside any Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions and, with respect to U.S. trademark registrations or application filed under 15 U.S.C. Section 1141, WIPO) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) assets of such Loan Party with a fair market value less than $10,000,000 located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above with respect to Mortgages, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured or the value of the Collateral subject to such Liens and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the Lead Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition thereof or reflecting that such Person becomes has become a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after If any Person other than an Affected Subsidiary is or becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or a Material Foreign Subsidiary, then the Company shall, as promptly as possible but in any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to event within thirty (30) days (or such later date as may be an Excluded Subsidiary (including by qualifying independently as, or being designated agreed upon by the Borrower as a Material Subsidiary) (a “New Loan Party”Administrative Agent), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than Affected Subsidiaries) which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document Subsidiary Guaranty or joinder thereto (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty or joinder to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of . Notwithstanding the foregoing, and subject to no such guarantee by a Material Foreign Subsidiary shall be required hereunder until the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause date that is 30 days after the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Effective Date or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, later date as the Administrative Agent may reasonably requestagree in the exercise of its reasonable discretion with respect thereto.
(b) During any Collateral Period, all if any Person is or becomes a Material Domestic Subsidiary, then the Company shall, as promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) or, if earlier, no later than the date on which such Subsidiary Guarantees any other Material Indebtedness, provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall cause each such Domestic Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a joinder to the Security Agreement (in the form contemplated thereby) pursuant to which such Domestic Subsidiary agrees to be bound by the terms and provisions thereof, the Security Agreement to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Belden Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently as, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Material Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. such Subsidiary Guaranty and Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, constituting personal, tangible, intangible, or mixed mixed, but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with and to the extent required by the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower will (where applicablei) and Section 5.09(f), Irish Holdco (A) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments deposit account control agreements or blocked account agreements with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit accounts maintained by, the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that , in each case in accordance with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages terms and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% conditions of the fair market value Security Agreement. Notwithstanding the foregoing, no pledge agreement in respect of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative AgentAgent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Myr Group Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or an Excluded Tax Subsidiary, (ii) any Excluded Subsidiary (other than an Excluded Tax Subsidiary) that is not an Unrestricted Subsidiary or an Excluded Tax Subsidiary ceases to be an Excluded Subsidiary or (iii) an Excluded Tax Subsidiary that is not an Unrestricted Subsidiary or an Excluded Subsidiary ceases to be an Excluded Tax Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall promptly provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementsubstance reasonably satisfactory to, the U.S. Security Agreement (if applicable) and other applicable Collateral DocumentAdministrative Agent, to be securing payment of all the Finance Obligations of such New Loan Party under the Finance Documents, accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Each Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicabledocuments), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(dc) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets Property and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrowers will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrowers will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdco.
(e) Except the Borrowers; provided that, with respect to a Subsidiary that is an Equity Interests, such actions will be limited to those specified in clause (b) above. Table of Contents
(d) Notwithstanding the foregoing, with respect to (x) any property (other than Excluded SubsidiaryProperty), concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco including Mortgaged Property, owned on or acquired after the Closing Date, Irish Holdco the Loan Parties shall cause each such Subsidiary have one hundred twenty (i120) to execute a Joinder Agreement substantially in days after the form date hereof or date of Exhibit D acquisition thereof as applicable, or (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iy) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing DateNew Loan Party, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case case, such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions case of the UCC or other applicable law)foregoing, to take the actions required by this Section.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Subsidiary) (a Subsidiary Guarantor pursuant to the definition of “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, within the time periods set forth below with respect to real property, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.16 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Loan Agreement (Photronics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than any CFC Holding Company or any Subsidiary of any CFC or CFC Holding Company) which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. For the avoidance of doubt, except as provided in Section 5.09(f) below, no CFC or CFC Holding Company (or any subsidiary of any CFC or CFC Holding Company) shall, by joinder or otherwise, become party to the Subsidiary Guaranty or the Security Agreement or otherwise be bound by the terms and provisions thereof.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraphclause (d) of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or an Excluded Tax Subsidiary, (ii) any Excluded Subsidiary (other than an Excluded Tax Subsidiary) that is not an Unrestricted Subsidiary or an Excluded Tax Subsidiary ceases to be an Excluded Subsidiary or (iii) an Excluded Tax Subsidiary that is not an Unrestricted Subsidiary or an Excluded Subsidiary ceases to be an Excluded Tax Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall promptly provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementsubstance reasonably satisfactory to, the U.S. Security Agreement (if applicable) and other applicable Collateral DocumentAdministrative Agent, to be securing payment of all the Finance Obligations of such New Loan Party under the Finance Documents, accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco The Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicabledocuments), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(dc) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets Property and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrower; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(ed) Except Notwithstanding the foregoing, with respect to a Subsidiary that is an (x) any property (other than Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco Property) owned on or acquired after the Closing Date, Irish Holdco the Loan Parties shall cause each such Subsidiary have one hundred twenty (i120) to execute a Joinder Agreement substantially in days after the form date hereof or date of Exhibit D acquisition thereof as applicable, or (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iy) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing DateNew Loan Party, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case case, such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions case of the UCC or other applicable law)foregoing, to take the actions required by this Section.
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(f) below after any Person becomes a Restricted Each Domestic Subsidiary (that is not an Excluded Subsidiary Immaterial Subsidiary) created, acquired or held on any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases date subsequent to the Effective Date, shall as promptly as possible but in any event within thirty (30) days (or such later date as may be an Excluded Subsidiary (including by qualifying independently as, or being designated agreed upon by the Borrower as a Material SubsidiaryAdministrative Agent) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person date, execute and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent Agent, for the benefit of the Lenders, a Joinder joinder to the Subsidiary Guaranty, the Pledge Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof, along with any corporate governance and authorization documents, and an opinion of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions counsel as may be reasonably requested by, and in form and substance reasonably satisfactory to, deemed necessary or advisable by the Administrative Agent and its counselAgent.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Parent will cause, and will cause each other Loan Domestic Credit Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 5.09. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Parent will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than Equity Interests constituting Excluded Assets) directly owned by Irish Holdco the Parent or any other Loan Domestic Credit Party (other than Excluded Equity Interests) to be subject at all times to a first prioritypriority (subject in any case to Liens permitted by Section 5.09), perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) willrequest. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary that is governed under foreign law shall be required hereunder until the Foreign Pledge Perfection Trigger Date, at which time the Administrative Agent shall, and will cause each other Loan Party toat all times thereafter, deliver Mortgages in the discretion of the Administrative Agent or the Required Lenders, have the right to perfect, at the Parent’s cost, payable upon request therefor (including, without limitation, any foreign counsel, or foreign notary, filing, registration or similar, fees, costs or expenses), its security interest in such Pledged Securities in the respective foreign jurisdiction; provided that, the Administrative Agent and Mortgage Instruments the Required Lenders, in their reasonable discretion and in consultation with the Parent, may waive the requirements of this subsection (b) with respect to real property (excluding Excluded Assets) owned by Irish Holdco or the perfection of any such Loan Party Pledged Securities in any foreign jurisdiction to the extent, and within extent that it determines that the costs of perfecting its security interests in such time period as is, reasonably required by Pledged Securities are excessive in relation to the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable security to the Administrative Agentbe afforded thereby.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party Domestic Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Domestic Credit Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Parent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Domestic Credit Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Parent.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (PTC Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than thirty (30) days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. Notwithstanding anything to the contrary set forth herein, no Subsidiary constituting an Excluded Subsidiary shall be required to be a Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) Collateral to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents. Notwithstanding the foregoing, (i) no Loan Party shall be required to provide any mortgage, landlord waiver, collateral access agreement or deed of trust with respect to any real property (including leasehold interests), (ii) no Loan Party shall be required to provide any pledge or security agreement that is governed by any law other than the laws of the State of New York, and (iii) no such other pledge and security documents as agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or its counsel determines that such Loan Party to pledge would not provide material credit support for the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles limitations in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust filings and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral DocumentsDocuments (including, for the avoidance of doubt, in connection with the disclosure of any additional assets constituting Collateral pursuant to any updates of the exhibits to the Security Agreement as required thereby), all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other set forth herein, no Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date Party shall be subject required to the penultimate paragraph of Section 4.01, (ii) with respect grant a security interest to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in any Collateral until the exercise of its reasonable discretion with respect thereto) 90th day to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired occur after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Effective Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Material Domestic Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as a Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens permitted by Section 6.02 (and (ii) without provided further that such perfection with respect to intellectual property shall be limited to the United States). Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection the Borrower (except that such perfection with any real respect to intellectual property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations shall be limited to the extent applicableUnited States).
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within Promptly (but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent)) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Material Domestic Subsidiary (including either by qualifying independently asas such, or being designated by the Borrower Company or the Administrative Agent as a Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person Material Domestic Subsidiary and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Material Domestic Subsidiary agrees to be bound by the terms and provisions of this Agreementhereof and at the other Loan Documents to which it shall have become a party, the U.S. Security Joinder Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. Notwithstanding anything to the contrary in the foregoing, in the event that a Subsidiary guaranties any Material Indebtedness, such Subsidiary shall become a Guarantor even if such Subsidiary is not otherwise required to become a Guarantor pursuant to this Section 7.09(a).
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Loan Party to cause, all of its owned property the Collateral (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to valid, first priority, and, with respect to personal property, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties holders of the Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 8.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Specified Real Property owned by Irish Holdco the Company or such Loan Party to the extent, and Guarantor within 90 days (or such time period later date as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxesAgent may agree in its sole discretion) after the acquisition thereof. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% with respect Specified Real Property owned as of the fair market Closing Date are required to be delivered hereunder until that date that is 90 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), (ii) no such pledge agreement in respect of the Equity Interests of Zep Europe B.V. (the “Dutch Pledge Agreement”) shall be required hereunder until the date that is 60 days after the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), (iii) no such pledge agreement in respect of the Equity Interests of Zep Holdings Singapore Pte. Ltd shall be required hereunder unless and until such Subsidiary (A) has tangible personal property in excess of $2,500,000 or (B) contributes more than $2,500,000 to Consolidated EBITDA for any period, (iv) no such pledge agreement shall be required to the extent the Administrative Agent determines in its sole discretion that the cost or other negative consequence to the Company and its Subsidiaries of compliance with the foregoing requirements is excessive in relation to the value of the applicable mortgaged propertycollateral security to be afforded thereby and (v) in the event that the Company reorganizes its corporate structure such that ownership of a First-Tier Foreign Subsidiary’s Equity Interests is transferred to another Foreign Subsidiary, as reasonably determined in good faith by then the Loan Parties Lien on the Equity Interests of the transferred Foreign Subsidiary shall be released and reasonably acceptable replaced with a Lien on the Applicable Pledge Percentage of the Equity Interests of the First-Tier Foreign Subsidiary that succeeds to the Administrative Agentdirect or indirect ownership of the Equity Interests in such transferred Foreign Subsidiary.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instrumentsinstruments (including without limitation landlord waivers and access letters, which shall be in form and substance reasonably acceptable to the Administrative Agent), and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.015.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and Documents, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all and to correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, in each case at the expense of Irish Holdcothe Company; provided that, notwithstanding anything to the contrary in connection with any real property subject the foregoing, (i) the Company and its Subsidiaries shall not be required to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations obtain deposit account control agreements or securities account control agreements (except to the extent applicable.
required to perfect the Administrative Agent’s security interest in Equity Interests of Subsidiaries required to be pledged pursuant to clauses (da) Subject and (b) above) and (ii) the Loan Parties shall only be required to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject use their commercially reasonable efforts to the Lien in favor of provide to the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations landlord waivers and will take, and cause the other Loan Parties to take, such actions as access letters (which shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory acceptable to the Administrative Agent and its counsel.
Agent) requested hereunder with respect to (f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iA) any deliverables individual location leased by a Loan Party where personal property Collateral having a fair market value (in the aggregate) in excess of $10,000,000 is maintained, and (B) each location leased by the Company or its Subsidiaries where the Company’s primary corporate records are maintained, and no such landlord waiver or access letter with respect to 000 Xxxxxxx Xxxx Xxxx, Atlanta GA 30336 is required to be delivered pursuant to this Section 5.09 as of hereunder until that date that is 90 days after the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawsole discretion).
Appears in 1 contract
Samples: Credit Agreement (Zep Inc.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary) (a ” and “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement andthe Subsidiary Guaranty or, in the case of a Domestic Foreign Subsidiary, such other guarantee agreements as may be requested by the U.S. Administrative Agent and (in the case of a Domestic Loan Party) the Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such joinder to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
. Notwithstanding the foregoing, no such Subsidiary Guaranty from the Company’s Taiwanese Subsidiary (f) Notwithstanding anything or any other Foreign Subsidiary which is the successor by merger to the contrary herein or in any other Loan Document, (iTaiwanese Subsidiary) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to required hereunder until the penultimate paragraph of Section 4.01, date which is sixty (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (9060) days after the acquisition of the applicable real property Effective Date (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent agree in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Hardinge Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an (other than any Excluded Subsidiary Subsidiary) or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and and, if reasonably requested by the Administrative Agent, legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding any Excluded Assets) to be subject at all times to, to the extent required by this Agreement or the Collateral Documents, first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien (subject to Permitted Liens) in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request request. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or under such Loan Party Foreign Subsidiary’s jurisdiction of organization to the extent, and within such time period as is, reasonably required by extent the Administrative Agent; provided Agent or its counsel determines that with respect to jurisdictions that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure ensure, to the extent required by this Agreement and the Collateral Documents, perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including excluding any real property or improvements thereto or any interest thereinExcluded Assets) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and, to the extent required by this Agreement and the Collateral Documents, perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary Notwithstanding the foregoing, the parties hereto acknowledge and agree that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as circumstances where the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to determines that the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein cost or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as effort of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (obtaining or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect perfecting a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant asset that constitutes Collateral is excessive in relation to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect benefit afforded to the applicable anti-assignment provisions Secured Parties thereby, the Administrative Agent may exclude such Collateral from the creation and perfection requirements set forth in this Agreement and the other Loan Documents and (ii) the Administrative Agent may grant extensions of time for the UCC creation or perfection of Liens in particular property (including extensions of time beyond the Effective Date) where it determines that such creation or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other applicable law)Loan Document.
Appears in 1 contract
Samples: Credit Agreement (LHC Group, Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors and without additional commercial obligations, representations, undertakings or indemnities materially broader than those contained in the Loan Documents entered into on the Closing Date unless required for the creation, perfection or effective enforcement of security), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel; provided, however, that any such foreign guarantees and foreign security will be limited or not required as, and to the extent, set forth in the Agreed Security Principles.
(ib) Subject to Section 6.09(e) and the Agreed Security Principles (where applicable) and Section 5.09(f)Principles, Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and but subject to Section 6.09(e) and the Agreed Security Principles Principles, Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but in any event subject to the Agreed Security Principles and Section 5.09(f)Principles, Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) with an aggregate fair market value greater than or equal to $10,000,000 (any real property with an aggregate fair market value greater than or equal to $10,000,000 is referred to herein as a “Material Real Property”) are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent and in each case, subject to the Agreed Security Principles; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.; provided, however, that the applicable Loan Party shall not execute and deliver any Mortgage on any Material Real Property until (x) at least 90 days (or such shorter period as is acceptable to the Administrative Agent in its sole discretion) from the date the Lead Borrower provides the Administrative Agent with prior written notice of such acquisition of such Material Real Property, (y) each Lender has received, at least ten Business Days prior to such execution and delivery, a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination and for any Mortgaged Property with a building in a special flood hazard area, an acknowledgment by the applicable Loan Party, and evidence of flood insurance, as may be required pursuant to the Flood Laws and (z) the Borrower has received confirmation from the Administrative Agent that flood insurance due diligence and flood insurance compliance has been completed.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions outside any Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions (or France, solely with respect to the Equity Interests of Material Restricted Subsidiaries organized in France) or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other than the Covered Jurisdictions and, with respect to U.S. trademark registrations or application filed under 15 U.S.C. Section 1141, WIPO) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction; provided, however, that no actions in any jurisdiction outside a Loan DocumentParty’s jurisdiction of organization shall be required in order to create or perfect any security interests in (x) the Equity Interests held by such Loan Party of any Person that is not a Material Restricted Subsidiary or (y) assets of such Loan Party with a fair market value less than $10,000,000 located outside such Person’s jurisdiction of organization; (v) except as specified in paragraph (b) above with respect to Mortgages, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured or the value of the Collateral subject to such Liens and (vi) no actions in any jurisdiction outside the United States shall be required where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby (taking into account any documentation in any Covered Jurisdiction related thereto) as reasonably determined by the Administrative Agent in writing (in consultation with the Lead Borrower). Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the delivery of a Perfection Certificate (or supplements to the exhibits thereto) disclosing the acquisition thereof or reflecting that such Person becomes has become a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within 45 days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Domestic Subsidiary or any Excluded Domestic Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Guaranty and a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate requisite organizational resolutions, other corporate organizational documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counselcounsel (but, with respect to any such legal opinion, limited to the types of matters covered in the legal opinions delivered pursuant to Section 4.01). Notwithstanding anything to the contrary in any Loan Document, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) terms, limitations and Section 5.09(f)exceptions set forth in the applicable Collateral Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether personal or real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting permitted by Section 6.02. With respect to the generality pledge of the foregoing, any Equity Interest in any Subsidiary and subject to the Agreed Security Principles (where applicable) terms, limitations and Section 5.09(f)exceptions set forth in the applicable Collateral Documents, Irish Holdco the Borrower will cause (A) will cause 100% of the issued and outstanding Equity Interests of (1) each Pledge Subsidiary that is a Domestic Subsidiary (other than Domestic Foreign Holding Companies and Subsidiaries of a Foreign Subsidiary or a Domestic Foreign Holding Company) and (2) the UK Material Subsidiary and (B) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Pledge Subsidiary (i) that is a Foreign Subsidiary (other than the UK Material Subsidiary) or (ii) that is a Domestic Foreign Holding Company, in each case which Equity Interests are directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected (subject in any case to Liens permitted by Section 6.02) Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as Documents. Without limiting the Administrative Agent shall reasonably request and (B) generality of the foregoing, the Borrower will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party to Subsidiary Guarantor which does not constitute Excluded Real Property within 90 days after the extent, and within acquisition thereof (it being agreed that the Administrative Agent may extend such time period as isperiod, reasonably required in its reasonable discretion, by up to 30 days). Notwithstanding the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxesforegoing, the applicable no such Mortgages and Mortgage Instruments are required to be delivered hereunder for Excluded Real Property or and in any case until the date that is 90 days after the Effective Date (it being agreed that the Administrative Agent may extend such time period, in its reasonable discretion, by up to 30 days). Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by the Borrower or any other Collateral Documents shall Loan Party after the Effective Date until the date that occurs 14 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically on an Electronic System) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Borrower that flood insurance coverage is not secure indebtedness in an amount exceeding 105% available and (B) evidence of the fair market value of the applicable mortgaged property, as reasonably determined in good faith receipt by the Loan Parties Borrower of such notice; and reasonably acceptable (iii) if such notice is required to be provided to the Administrative AgentBorrower and flood insurance is available in the community in which such real property is located, evidence of required flood insurance.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the terms, limitations and exceptions set forth herein or in any Collateral Document, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than (i) Excluded Assets and or (ii) assets of the type constituting Collateral under the U.S. Security Agreement or other applicable Collateral Document that either become subject to the Lien in favor of under the U.S. Security Agreement or other applicable Collateral Document upon acquisition thereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent upon acquisition thereofAgent’s Lien in such assets), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Agent and the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and and, as applicable, cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.095.09(c), all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiarythe Borrower, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Datesubject, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiaryhowever, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent terms, limitations and its counsel.
(f) Notwithstanding anything to the contrary exceptions set forth herein or in any other Loan Collateral Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event but not later than thirty (30) days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded (including pursuant to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary) or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Restricted Domestic Subsidiary pursuant to the definition of “Material Restricted Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Restricted Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all otherwise in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) . Notwithstanding anything to the contrary herein or in any other Loan Documentset forth herein, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date no Restricted Subsidiary constituting an Excluded Subsidiary shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)Guarantor.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. As promptly as possible but in any event but not later than thirty (a30) Within days following the time periods specified delivery of the certificate required to be delivered under Section 5.01(c) (or such later date as may be agreed upon by the Administrative Agent) in Section 5.09(f) below after respect of the fiscal quarter immediately following the date on which any Person becomes a Restricted Subsidiary that is not an Excluded (including pursuant to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary) or any Excluded Restricted Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Restricted Domestic Subsidiary pursuant to the definition of “Material Restricted Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Restricted Subsidiary which also qualifies as a Material Restricted Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Restricted Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, consistent with those delivered on the Effective Date and otherwise in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(i) . Notwithstanding anything to the contrary set forth herein, no Restricted Subsidiary constituting an Excluded Subsidiary shall be required to be a Guarantor. 111. Subject to the Agreed Security Principles (where applicable) limitations contained in this Section 5.09 and Section 5.09(f)elsewhere in the Loan Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) Collateral to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting Documents. Notwithstanding the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date no Loan Party shall be subject required to the penultimate paragraph provide any mortgage, landlord waiver, collateral access agreement, estoppel or deed of Section 4.01, (ii) trust with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09including leasehold interests), (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (ivii) no Loan Party shall have be required to obtain the consent of any obligation to (A) enter into control agreements with respect to any security interest governmental authority or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateralthird party, (Biii) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect no actions shall be required to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the a filing of a UCC financing statement statement, (iv) no deposit account or securities account, or similar, control agreements shall be required, (Ev) pledge Equity Interests assets will be excluded from the Collateral in circumstances where the cost of obtaining a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by the Administrative Agent (in consultation with the Borrower) and (vi) the Borrower and Subsidiary Guarantors shall not be required, nor shall the Administrative Agent be authorized, to take any action in any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside the U.S. or to perfect any security interests in such assets, including, without limitation, any intellectual property registered in any non-U.S. jurisdiction or any equity interests of any partnership, joint venture or subsidiaries organized in any non-wholly owned Subsidiary which are not permitted to U.S. jurisdiction (it being understood that there shall be pledged pursuant to no security agreements or pledge agreements governed under the terms laws of such partnership’s, joint venture’s or any non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable lawU.S. jurisdiction).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraphclause (d) of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or an Excluded Tax Subsidiary, (ii) any Excluded Subsidiary (other than an Excluded Tax Subsidiary) that is not an Unrestricted Subsidiary or an Excluded Tax Subsidiary ceases to be an Excluded Subsidiary or (iii) an Excluded Tax Subsidiary that is not an Unrestricted Subsidiary or an Excluded Subsidiary ceases to be an Excluded Tax Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary), Irish Holdco and in each case, the Borrower shall promptly provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other all applicable Collateral Document (Documents then in existence, in each case as specified by, and in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicable) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementsubstance reasonably satisfactory to, the U.S. Security Agreement (if applicable) and other applicable Collateral DocumentAdministrative Agent, to be securing payment of all the Finance Obligations of such New Loan Party under the Finance Documents, accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Each Borrower will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust Mortgages and other documents and such other actions or deliveries of the type required by Section 4.01, as applicabledocuments), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(dc) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are asset constituting Collateral is acquired by a Loan Party after the Closing Date (other than Excluded Assets Property and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco the Borrowers will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrowers will cause such assets Collateral to be subjected subject to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (bc) of this Section 5.09above, all at the expense of Irish Holdcothe Borrowers; provided that, with respect to Equity Interests, such actions will be limited to those specified in clause (b) above.
(ed) Except Notwithstanding the foregoing, with respect to a Subsidiary that is an (x) any property (other than Excluded SubsidiaryProperty), concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco owned on or acquired after the Closing Date, Irish Holdco the Loan Parties shall cause each such Subsidiary have one hundred twenty (i120) to execute a Joinder Agreement substantially in days after the form date hereof or date of Exhibit D acquisition thereof as applicable, or (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (iy) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing DateNew Loan Party, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case case, such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and in each case of the foregoing, to take the actions required by this Section.
(ive) no Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party shall have any obligation after the Closing Date until (x) the date that occurs 45 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor, (ii) if such real property is located in a “special flood hazard area,” (A) enter into control agreements with respect a notification to any security interest or lien in any Deposit Account or Securities Account the applicable Loan Party of that fact and (in each case, as defined in if applicable) notification to the UCC) included in the Collateral, applicable Loan Party that flood insurance is not available and (B) perfect any security interest or lien in any intellectual property included in evidence of receipt by the Collateral in any jurisdiction other than in the United Statesapplicable Loan Party of such notice, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, and (Ciii) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted if such notice is required to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect provided to the applicable anti-assignment provisions Loan Party and flood insurance is available in the community in which such real property is located, evidence of flood insurance, and (y) the UCC Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or other applicable lawdelayed).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement andthe Guaranty, or, in the case of a Domestic Material Subsidiary that is a Foreign Subsidiary, a separate Guaranty governed by local law to the U.S. extent so requested by the Administrative Agent (provided that no Material Subsidiary that is a Foreign Subsidiary shall be required to deliver such a joinder or Guaranty to the extent (A) such action by such Subsidiary is prohibited or restricted by applicable law or regulation (any such Material Subsidiary that is a Foreign Subsidiary described in the foregoing clause (A), a “Specified Non-Required Subsidiary”) or (B) the Administrative Agent or its counsel determines that such joinder or Guaranty would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to a legally valid, binding and enforceable guaranty) and, if the Administrative Agent so elects in its reasonable discretion after consultation with the Company, the Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(i) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Each U.S. Loan Party will cause, and will cause each other Loan Party of its subsidiaries which is a Material Subsidiary to cause, all of its owned personal property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for Agent, on behalf of itself and the benefit of the other Secured Parties Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) each U.S. Loan Party will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly or indirectly owned by Irish Holdco or any other such U.S. Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) willrequest, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and all within such time period as is, is reasonably required by the Administrative Agent; provided . Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Restatement Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to jurisdictions the extent the Administrative Agent or its counsel determines that impose mortgage recording taxessuch pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(ii) At any time after the Restatement Effective Date, to the extent the Administrative Agent so elects in its reasonable discretion after consultation with the Company, the Administrative Agent may require the Company or any Loan Party (any such Person, an “Additional Collateral Loan Party”) to comply with the provisions of this Section 5.09, in which case the Company will cause, or will cause the applicable Mortgages Loan Party to cause, all (or the portion required by the Administrative Agent) of its owned personal property (whether tangible, intangible, or mixed) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent, on behalf of itself and Mortgage Instruments the other Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any other case to Liens permitted by Section 6.02. Without limiting the generality of the foregoing, each Additional Collateral Documents shall not secure indebtedness in an amount exceeding 105Loan Party will, to the extent required by the Administrative Agent, cause 100% of the fair market value issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by such Additional Collateral Loan Party to be subject at all times to a first priority, perfected Lien in favor of the applicable mortgaged propertyAdministrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request, all within such time period as is reasonably determined in good faith required by the Loan Parties and reasonably acceptable to the Administrative Agent. Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent or its counsel determines that such pledge would not, in light of the cost and expense associated therewith, provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and enforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.013 of the Amendment and Restatement Agreement, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and limitations set forth in Section 5.09(f)10.02 below, if any assets (including excluding any real property or improvements thereto or any interest therein) are acquired by a Loan Party that has previously entered into (or has been required by the Administrative Agent to enter into) a Security Agreement (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Company will notify the Administrative Agent thereof, and, if reasonably requested by the Administrative Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Cimpress N.V.)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary (other than any CFC Holding Company or any Subsidiary of any CFC or CFC Holding Company) which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel. For the avoidance of doubt, no CFC or CFC Holding Company (or any subsidiary of any CFC or CFC Holding Company) shall, by joinder or otherwise, become party to the Subsidiary Guaranty or the Security Agreement or otherwise be bound by the terms and provisions thereof.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with with, and to the extent required by, the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) will cause the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (B) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required permitted by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicable6.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party (other than Excluded Assets and assets constituting Collateral that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), Irish Holdco will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (b) of this Section 5.09, all at the expense of Irish Holdco.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed mixed, but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary (other than Equity Interests constituting Excluded Assets) directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in an amount exceeding 105% the exercise of its reasonable discretion with respect thereto, (ii) no such pledge agreement in respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith binding and enforceable pledge agreements, (iii) no control or similar arrangements shall be required with respect to deposit or securities accounts unless so requested by the Administrative Agent, (iv) the Borrower and the Loan Parties and reasonably acceptable shall not be required to take any action with respect to the Administrative Agentcreation or perfection of Liens under foreign law with respect to any Collateral, (v) no landlord lien waivers, estoppels or collateral access letters shall be required and (vi) no Loan Party shall be required to take any action in order to create or perfect a security interest in Specified Assets.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Healthequity Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Domestic Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times (subject to the time periods specified in clause (a) above) to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Borrower (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times (subject to the time periods specified in clause (a) above) to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco the Borrower or such Loan Party Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that . Notwithstanding the foregoing, no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until September 30, 2010 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to jurisdictions the extent the Administrative Agent or its counsel determines that impose mortgage recording taxes, such pledge would not provide material credit support for the applicable Mortgages and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% benefit of the fair market value of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest thereintherein but excluding any Excluded Assets) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Samples: Credit Agreement (Blackboard Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material Subsidiary) (a “New Loan Party”), Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such Subsidiary Guaranty and the U.S. Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate resolutions, other corporate documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but mixed, subject to the exceptions expressly contained herein and in any Loan Document and excluding Excluded AssetsProperty) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco (A) Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests (other than Excluded Property) of each Pledge Subsidiary directly or indirectly owned by Irish Holdco the Borrower or any other Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and request. Notwithstanding the foregoing, (i) no such pledge agreement in respect of the Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that occurs sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, or (B) willto the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the Secured Parties pursuant to legally valid, binding and will cause each other Loan Party toenforceable pledge agreements, deliver Mortgages and Mortgage Instruments (ii) no control or similar arrangements shall be required with respect to real property (excluding Excluded Assets) owned by Irish Holdco deposit or such Loan Party to the extent, and within such time period as is, reasonably required securities accounts unless so requested by the Administrative Agent; provided that , (iii) the Borrower and the Loan Parties shall not be required to take any action with respect to jurisdictions that impose mortgage recording taxesthe creation or perfection of Liens under foreign law with respect to any Collateral other than foreign law governed pledge agreements described in clause (i) above, the applicable Mortgages (iv) no landlord lien waivers, estoppels or collateral access letters shall be required and Mortgage Instruments and any (v) in respect of motor vehicles subject to certificates of title, no steps other Collateral Documents than filing of UCC financing statements shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentbe required.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Material Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust statements and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest thereintherein but excluding any Excluded Property) are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets constituting Collateral under the Security Agreement that become subject to the Lien in favor of under the Administrative Agent Security Agreement upon acquisition thereof), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Samples: Credit Agreement (Angiodynamics Inc)
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in Section 5.09(fsixty (60) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary days (or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to such later date as may be an Excluded Subsidiary (including by qualifying independently as, or being designated reasonably agreed upon by the Borrower Administrative Agent) after financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and any Wholly Owned Subsidiary qualifies as a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary) (” in accordance with the calculations in such financial statements, to the extent any such Subsidiary is not already a “New Loan Party”)Subsidiary Guarantor, Irish Holdco and the Borrower shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary to deliver to the Administrative Agent a Joinder Agreement and a supplement joinder to this Agreement and, in the case of a Domestic Subsidiary, Subsidiary Guaranty the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, such joinders to the U.S. Subsidiary Guaranty and the Security Agreement (if applicable) and other applicable Collateral Document, to be accompanied by appropriate corporate requisite organizational resolutions, other corporate organizational or constitutional documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counselcounsel (but, with respect to any such legal opinion, limited to the types of matters covered in the legal opinions delivered pursuant to Section 4.01). Notwithstanding anything to the contrary in any Loan Document, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
(ib) Subject to the Agreed Security Principles (where applicable) terms, limitations and Section 5.09(f)exceptions set forth herein and in the applicable Collateral Documents, Irish Holdco the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basisDocuments, subject in any case to no other Liens other than Permitted Liens and (ii) without limiting the generality of the foregoing, and subject permitted by Section 6.02. With respect to the Agreed Security Principles pledge of any Equity Interest in any Subsidiary, the Borrower (where applicablei) and Section 5.09(f), Irish Holdco will cause (A) will cause 100% of the issued and outstanding Equity Interests of each Pledge Subsidiary that is a Domestic Subsidiary and (B) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Pledge Subsidiary that is a Foreign Subsidiary that is a CFC or a FSHCO, in each case directly owned by Irish Holdco the Borrower or any other Loan Party (other than any Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien in favor of the Collateral Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents documents, subject in any case to Liens permitted by Section 6.02, as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) Material Real Property owned by Irish Holdco the Borrower or such Loan Party Subsidiary Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable (i) no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto and any other Collateral Documents shall not secure indebtedness (ii) no such pledge agreement in an amount exceeding 105% respect of the fair market value Equity Interests of a Foreign Subsidiary shall be required hereunder (A) until the date that is ninety (90) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, and (B) to the extent the Administrative Agent or its counsel determines that such pledge would not provide material credit support for the benefit of the applicable mortgaged propertySecured Parties pursuant to legally valid, as reasonably determined in good faith by the Loan Parties binding and reasonably acceptable to the Administrative Agentenforceable pledge agreements.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Borrower will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableBorrower.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any material assets (including any real property or improvements thereto or any interest therein) are acquired by a any Loan Party after the Effective Date (other than (i) Excluded Assets and or (ii) assets of the type constituting Collateral under the Security Agreement that become either becomes subject to the Lien in favor of under the Security Agreement upon acquisition thereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent upon acquisition thereofAgent’s Lien in such assets), Irish Holdco the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and and, as applicable, cause the other Loan Parties any Subsidiary Guarantor to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Borrower, subject, however, to the terms, limitations and exceptions set forth herein or in any Collateral Document.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with Notwithstanding the designation foregoing provisions of any Subsidiary as a guarantor under this Section 5.09 or anything in this Agreement or any other Material Indebtedness of Irish Holdco after Loan Document to the Closing Datecontrary, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form foregoing provisions of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in this Section 5.09 shall not require the case creation or perfection of a Foreign Subsidiarypledges of or security interests in, modified as required in order to comply with local laws in accordance with or the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and obtaining of legal opinions or other deliverables with respect to, particular assets of counselthe Loan Parties, or the provision of Guarantees by any Loan Party, if, and for so long as the Administrative Agent may and the Borrower reasonably requestagree that the cost of creating or perfecting such pledges or security interests in such assets, all or obtaining such legal opinions or other deliverables in form respect of such assets, or providing such Guarantees (taking into account any adverse tax consequences to the Borrower and substance its Subsidiaries, including any potential incremental tax liability resulting or anticipated to result from the application of Section 956 of the Code (determined without regard to any tax attributes), regardless of the current or accumulated earning and profits (as defined within Section 312 of the Code) of a FSHCO or any of its Subsidiaries), shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) Liens required to be granted from time to time pursuant to this Agreement and the other Loan Documents shall be subject to exceptions and limitations set forth herein (including the time periods set forth in Section 5.11) and in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as reasonably satisfactory to agreed between the Administrative Agent and its counsel.
the Borrower, (fiii) Notwithstanding anything in no event shall the Collateral include any Excluded Assets, (iv) perfection by control will not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control or possession of (x) Deposit Accounts to extent required by the Security Agreement (but in any event excluding Excluded Accounts) and (y) pledged Equity Interests (to the contrary herein extent certificated) or promissory notes and other instruments evidencing all such debt securities, in each case, that constitute Collateral), (v) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, and (vi) no Loan party will be required to, and the Administrative Agent will not be authorized to take any action, in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction to create or grant any security interests in assets located or titled outside of the U.S. or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no Collateral Documents governed under the laws of any non-U.S. jurisdiction and no non-U.S. intellectual property filings, searches or schedules) or conduct any foreign lien search.. The Administrative Agent may grant extensions of time (including after the expiration of any relevant period, which apply retroactively) for the creation and perfection of security interests in, or the obtaining of, any applicable legal opinions or other Loan Documentdeliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including, (i) any deliverables delivered without limitation, extensions beyond the Effective Date, as required pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01or in connection with assets acquired, (ii) with respect to any real property acquired or Subsidiaries formed or acquired, after the Closing Effective Date) where it determines that such action cannot be accomplished, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or undue effort or expense would be required to accomplish such later date as may be agreed upon action, by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property time or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions times at which it would otherwise be required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required accomplished by this Section; provided thatAgreement or the Collateral Documents, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party each Lender hereby consents to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise extension of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law)time.
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Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within the time periods specified in the last paragraph of this Section 5.09(f6.09, after (i) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or (ii) any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying independently aseach, or being designated by the Borrower as a Material Subsidiary) (a “New Loan Party”) (including, in each case, for the avoidance of doubt, a Restricted Subsidiary that is no longer an Excluded Subsidiary, including as a result of any Permitted Reorganization), Irish Holdco and the Borrower in each case, Parent shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person New Loan Party and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party to deliver to the Administrative Agent (x) a Joinder guaranty or a joinder to the Guaranty Agreement in form and substance satisfactory to the Administrative Agent, guaranteeing the Finance Parties’ obligations under the Finance Documents and (y) a supplement joinder to this Agreement andall applicable Collateral Documents then in existence or, in the case of a Domestic SubsidiaryForeign Subsidiary organized in a jurisdiction with respect to which no Collateral Documents have been delivered prior to such time, new Collateral Documents substantially comparable to the U.S. Security Agreement Collateral Documents for other Foreign Subsidiaries (and each consistent with customary collateral documents in such jurisdiction but, for the avoidance of doubt, with terms no more restrictive, when taken as a whole, than the other Collateral Documents applicable Collateral Document (to Guarantors), in each case as specified by, and in form and substance reasonably satisfactory to, the form contemplated thereby and modified as required in order to comply with local laws in accordance with Administrative Agent, securing payment of all the Agreed Security Principles, if applicable) pursuant to which Finance Obligations of such Subsidiary agrees to be bound by under the terms and provisions of this Agreement, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, Finance Documents to be accompanied by appropriate corporate resolutions, other corporate documentation and customary legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco Parent will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets) to be subject at all times to perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Secured Finance Parties to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis, subject to no other Liens other than Permitted Liens and (ii) without Liens. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Parent (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by Irish Holdco Parent or any other Loan Party (other than Excluded Equity InterestsAssets) to be subject at all times to a first priority, perfected Lien on a first priority basis, subject to Permitted Liens, in favor of the Collateral Administrative Agent to secure the Secured Finance Obligations in accordance with the terms and conditions of the Collateral Documents or such other pledge and security documents as the Administrative Agent shall reasonably request and (Bii) will, and will cause each other Loan Party to, deliver Mortgages and Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party to the extenteach Mortgaged Property, and within such time period as is, reasonably required by the Administrative Agenttogether with Mortgage Instruments; provided that with respect to jurisdictions that impose mortgage recording taxes, the applicable Mortgages Mortgage and Mortgage Instruments and any other Collateral Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the applicable mortgaged propertyMortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Parent will, and will cause each other Loan Party to, execute and deliver, or cause to be executed and delivered, to the Collateral Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableParent.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if If any assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party after the Closing Date (other than Excluded Assets and assets constituting Collateral under the Collateral Documents that become subject to the Lien in favor of the Administrative Collateral Agent upon acquisition thereof), Irish Holdco Parent will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, Irish Holdco Parent will cause such assets to be subjected to a Lien securing the Secured Finance Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish HoldcoParent; provided that, with respect to real property and Equity Interests, such actions will be limited to those specified in paragraph (b) of this Section.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein set forth herein, (i) no action shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement, (ii) control agreements and perfection by “control” (other than in respect of certificated Collateral) shall not be required with respect to any Collateral, (iii) there shall be no requirement to obtain any landlord waivers, estoppels or collateral access letters, (iv) no actions in any jurisdiction outside the United States or any jurisdiction of any Guarantor (the “Covered Jurisdictions”) shall be required in order to create any security interests in assets located or titled outside of the Covered Jurisdictions or to perfect any security interests in such assets, including any intellectual property registered in any jurisdiction (other Loan Documentthan the Covered Jurisdictions) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any jurisdiction other than a Covered Jurisdiction, except for stock pledge agreements with respect to Material Restricted Subsidiaries) and (v) except as specified in paragraph (b) above, no filings in respect of any Lien shall be required in any jurisdiction that impose recording fees based on the aggregate principal amount of indebtedness secured. Notwithstanding the foregoing, (i) any deliverables delivered pursuant to this Section 5.09 6.09 as of the Closing Date shall be subject to the penultimate last paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09Section, and (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety seventy-five (9075) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety seventy-five (9075) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
Appears in 1 contract
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances. (a) Within As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the time periods specified in Section 5.09(fAdministrative Agent) below after any Person becomes a Restricted Subsidiary that is not an Excluded Subsidiary or any Excluded Subsidiary that is not an Unrestricted Subsidiary ceases to be an Excluded Subsidiary (including by qualifying qualifies independently as, or being is designated by the Borrower as Company or the Administrative Agent as, a Material Subsidiary) (a Subsidiary Guarantor pursuant to the definition of “New Loan PartySubsidiary Guarantor”), Irish Holdco and the Borrower Company shall provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the earnings and material assets of such Person and shall (subject to the Agreed Security Principles, in the case of any Foreign Subsidiary) cause each such New Loan Party Subsidiary which also qualifies as a Subsidiary Guarantor to deliver to the Administrative Agent a Joinder Agreement joinder to the Subsidiary Guaranty and a supplement to this Agreement and, in the case of a Domestic Subsidiary, the U.S. Security Agreement and each other applicable Collateral Document (in each case in the form contemplated thereby and modified as required in order to comply with local laws in accordance with the Agreed Security Principles, if applicablethereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions of this Agreementthereof, the U.S. Security Agreement (if applicable) and other applicable Collateral Document, such Subsidiary Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and legal and joinder opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, to the Administrative Agent and its counsel.
(ib) Subject to the Agreed Security Principles (where applicable) and Section 5.09(f), Irish Holdco The Company will cause, and will cause each other Subsidiary qualifying as a Loan Party to cause, within the time periods set forth below with respect to real property, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assetsmixed) to be subject at all times to first priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents on a first priority basis(including amendments, restatements, supplements or other modifications to the Collateral Documents in effect prior to the Effective Date, in each case to the extent, and within such time period, as is reasonably requested by the Collateral Agent), subject in any case to no other Liens other than Permitted Liens and (ii) without permitted by Section 6.02. Without limiting the generality of the foregoing, and subject to the Agreed Security Principles Company (where applicable) and Section 5.09(f), Irish Holdco (Ai) will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by Irish Holdco the Company or any other Subsidiary qualifying as a Loan Party (other than Excluded Equity Interests) to be subject at all times to a first priority, priority and perfected (subject in each case to the qualifications specified in Section 3.15 with respect to priority and perfection) Lien in favor of the Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents Documents; provided that no such pledge of the Equity Interests of, or provision of Collateral by, a Foreign Subsidiary shall be required hereunder to the extent such other pledge or Collateral would create a Deemed Dividend Problem, is prohibited by applicable law or the Collateral Agent and security documents as its counsel reasonably determine that, in light of the Administrative Agent shall reasonably request cost and expense associated therewith, such pledge or Collateral would be unduly burdensome or not provide material Pledged Equity or Collateral for the benefit of the Holders of Secured Obligations pursuant to legally binding, valid and enforceable Pledge Agreements, and (Bii) will, and will cause each other Subsidiary qualifying as a Loan Party to, deliver Mortgages and amendments, restatements, supplements or other modifications to the Mortgages, Mortgage Instruments with respect to real property (excluding Excluded Assets) owned by Irish Holdco or such Loan Party and foreign law governed Pledge Agreements existing on the Effective Date, in each case to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent; provided that with respect to jurisdictions that impose mortgage recording taxes. Notwithstanding the foregoing, the applicable no new foreign law governed Pledge Agreements, Mortgages and Mortgage Instruments, and no amendments, restatements, supplements or other modifications to Mortgages, Mortgage Instruments and any other foreign law governed Pledge Agreements existing on the Effective Date, in each case are required to be delivered hereunder until the date that is sixty (60) days after the Effective Date or such later date as the Collateral Documents shall not secure indebtedness Agent may agree in an amount exceeding 105% the exercise of the fair market value of the applicable mortgaged property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agentits reasonable discretion with respect thereto.
(c) Without limiting the foregoing, but subject to the Agreed Security Principles and Section 5.09(f), Irish Holdco Company will, and will cause each other Loan Party Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, Mortgage Instruments, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.01, as applicable), which may be required by law or which the Administrative Collateral Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of Irish Holdco; provided that, in connection with any real property subject to this Section 5.09(c), Irish Holdco will comply with the National Flood Insurance Reform Act of 1994 and related legislation and regulations to the extent applicableCompany.
(d) Subject to the Agreed Security Principles and Section 5.09(f), if any assets (including If any real property or improvements thereto or any interest therein) interests therein are acquired by a Loan Party after the Effective Date (other than Excluded Assets and assets already constituting Collateral that become subject to under the Lien in favor of the Administrative Agent upon acquisition thereofSecurity Agreement or any Mortgage), Irish Holdco the Company will notify the Administrative Collateral Agent thereof, and, if requested by the Administrative Collateral Agent, Irish Holdco the Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Collateral Agent to grant and perfect such Liens, including actions described in paragraph (bc) of this Section 5.09Section, all at the expense of Irish Holdcothe Company.
(e) Except with respect to a Subsidiary that is an Excluded Subsidiary, concurrently with the designation of any Subsidiary as a guarantor under any other Material Indebtedness of Irish Holdco after the Closing Date, Irish Holdco shall cause each such Subsidiary (i) to execute a Joinder Agreement substantially in the form of Exhibit D (each a “Joinder Agreement”) to become a Subsidiary Guarantor (in the case of a Foreign Subsidiary, modified as required in order to comply with local laws in accordance with the Agreed Security Principles) and such joinder shall be accompanied by appropriate officers’ certificates, resolutions, Organizational Documents and legal opinions of counsel, as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, (i) any deliverables delivered pursuant to this Section 5.09 as of the Closing Date shall be subject to the penultimate paragraph of Section 4.01, (ii) with respect to any real property acquired after the Closing Date, the Loan Parties shall have ninety (90) days after the acquisition of the applicable real property (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section 5.09, (iii) with respect to any other property or assets acquired after the Closing Date or with respect to any New Loan Party, the Loan Parties shall have forty-five (45) days, or ninety (90) days in the case of the Equity Interests, property or assets of, or actions required to be taken by, any Foreign Subsidiary, after the acquisition thereof or such Person becomes a New Loan Party (or such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto) to take the actions required by this Section; provided that, in the case of any Equity Interests, property or assets of any Foreign Subsidiary acquired or any Foreign Subsidiary becoming a New Loan Party within ninety (90) days after the Closing Date, the Loan Parties shall have the longer of (A) ninety (90) days after the Closing Date and (B) ninety (90) days after such acquisition or such Person becoming a New Loan Party to take any such actions (or, in each case such later date as may be agreed upon by the Administrative Agent in the exercise of its reasonable discretion with respect thereto), and (iv) no Loan Party shall have any obligation to (A) enter into control agreements with respect to any security interest or lien in any Deposit Account or Securities Account (in each case, as defined in the UCC) included in the Collateral, (B) perfect any security interest or lien in any intellectual property included in the Collateral in any jurisdiction other than in the United States, except with respect to Foreign Intellectual Property issued or registered by, or applied-for in, a Covered Jurisdiction, (C) to obtain any landlord waivers, estoppels or collateral access letters, (D) perfect a security interest in any letter of credit rights, other than the filing of a UCC financing statement or (E) pledge Equity Interests of any partnership, joint venture or non-wholly owned Subsidiary which are not permitted to be pledged pursuant to the terms of such partnership’s, joint venture’s or non-wholly owned Subsidiary’s organizational, joint venture or equivalent documents (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law).
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Samples: Credit Agreement (Photronics Inc)